V9 >~n 3 1924 017 089 115 i..,>.f. i- «{p»'-'''-:;' The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017089115 THE HISTOEY OF ENGLISH LAW. aonlion: C. J. CLAY and SONS, CAMBRIDGE UNIVEESITY PEESS WAEEHOUSE, AND STEVENS AND SONS, LIMITED, 119 AND 120, CHANCEBY LANE. ' (StaBgoto: 26S, ARGTLE STREET. Eeipjij: F. A. BROCKHAUS. THE HISTORY OF ENGLISH L AW BEFORE THE TirA OF EDWARD I. BY Sir FREDERICK POLLOCK, Bart., M.A., LL.D., CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD, OF LINCOLN'S INN, BARRISTER-AT-LAW, AND FREDERIC WILLIAM MAITLAND, LL.D., DOWNING PROFESSOR OF THE LAWS OF ENGLAND IN THE UNIVERSITY OF CAMBRIDGE, OF LINCOLN'S INN, BARRISTER-AT-LAW. VOLUME I. CAMBEIDGB: AT THE UNIVERSITY PRESS. ^ BOSTON : LITTLE, BROWN, & COMPANY. 1895 [Alt Rights reserved.] PREFACE. nriHE present work has filled much of our 'time and thoughts -'- for some years. We send it forth, however, well knowing that in many parts of our field we have accomplished, at most, a preliminary exploration. Oftentimes our business has been rather to quarry and hew for some builder of the future than to leave a finished building. But we have endeavoured to make sure, so far as our will and power can go, that when his day comes he shall have facts and not fictions to build with. How near we may have come to fulfilling our purpose is not for us to judge. The only merit we claim is that we have given scholars the means of verifying our work throughout. We are indebted to many learned friends for more or less frequent help, and must specially mention the unfailing care and attention of Mr R. T. Wright, the Secretary of the University Press. Portions of the book have appeared, in the same words or in substance, in the Contemporary Review, the English Historical Review and the Harvard Law Review, to whose editors and proprietors we offer our acknowledgments and thanks. F. P. F. W. M. Note. It is proper for me to add for myself that, although the book was planned in common and has been revised by both of us, by far the greater share of the execution belongs to Mr Maitland, both as to the actual writing and as to the detailed research which was constantly required. F. P. 21 Feb. 1895. CONTENTS. FAQE Preface . v Table of Contents .... • ■ vi List op Abbreviations • • xvi List op Texts ......•■ xvu Addenda ■ ^^ Introduction • xxiu BOOK I. SKETCH OF EARLY ENGLISH LEGAL HISTORY. CHAPTER I. Anglo-Saxon Law, pp. 1 — 40. Imperfection of written records of early Germanic law, 1. Anglo- Saxon dooms and custumals, 3. Anglo-Saxon land-books, 4. Survey of Anglo-Saxon institutions, 5. Personal conditions : lordship, 5. The family, 7. Eanks : ceorl, eorl, gesls, 8. . Thane, 9. Other distinc- tions, 10. Privileges of the clergy, 11. Slavery and slave trade, 11. Manumission, 12. Courts and justice, 14. Proceduwj 15. Temporal and spiritual jurisdiction, 16. The king's jurisdiction, 17. The Witan, 18. County and hundred courts, 18. Private jurisdiction, 19. Subject- matter of Anglo-Saxon justice, 21. The king's peace, 22. Feud and atonement, 24. W&r, wlte and b6t, 26. Difficulties in compelling sub- mission to the courts, 27. Maintenance of offenders by great men, 27. Why no trial by battle, 28. Treason, 28. Homicide, 29. Personal in- juries : misadventure, 30. Archaic responsibility, 32. Theft, 33. Pro- perty, 33. Sale and other contracts, 34. Claims for stolen goods : warranty, 36. Land tenure, 37. Book-land, 37. Lsen-land, 38. Folk- land, 38. Transition to feudaUsm, 39. Contents. vii CHAPTER II. NoEMAN Law, pp. 41 — 56. Obscurity of early Norman legal history, 41. Norman law was French, 43. Norman law was feudal, 43. Feudalism in Normandy, 44. Dependent land tenure, 46. Seignorial justice, 49. Limits of ducal power, 50. Legal procedure, 51. Criminal law, 51. Ecclesiastical law, 52. The truce of God, 52. Condition of the peasantry, 53. Jurisprudence, 54. Lanfranc of Pavia, 54. CHAPTER III. England under the Noeman Kings, pp. 57 — 87. Effects of the Norman Conquest, 57. No mere mixture of national laws, 57. History of our legal language, 58. Struggle between Latin, French and English, 60. The place of Latin, 61. Struggle between French and English, 61. Victory of French, 62. French documents, 63. French law-books, 65. Language and law, 65. Preservation of old English law, 66. The Conqueror's legislation, 66. Character of William's laws, 67. Personal or territorial laws, 68. Main- tenance of English land-law, 70. The English in court, 71. Norman ideas and institutions, 71. Legislation: Rufi^ and Henry I., 73. Stephen, 74. The law-books or Leges, 75. Genuine laws of Wilham I., 75. The Quadripartitus, 76. Leges Henrici, 77. Cormliatio Cnuti, 79. Instituta Cnuti, 79. French Leis of William I., 79. Leges Edwwrdi Confessoris, 81. Character of the law disclosed by the Leges, 82. Practical problems in the Leges, 83. Practice of the king's court, 85. Koyal justice, 86. CHAPTER IV. Roman and Canon Law, pp. 88 — 114. Contact of English with Roman and Canon law, 88. Eoman law and the barbarian invasions, 88. The Bolognese revival, 89. Cosmopolitan claims of Roman law, 89. Growth of Canon law, 90. Gratian, 92. Decretales Oregorii, 92. The Canonical system, 93. Relation of Canon to Roman law, 95. Roman and Canon law in England, 96. Vacarius, 97. English legists and canonists, 99. Scientific work in England, 100. The civilian in England, 102. Province of ecclesiastical law, 104. Matters of ecclesiastical eco- nomy, 105. Church property, 106. Ecclesiastical dues, 106. Matri- monial causes, 106. Testamentary causes, 107. Fidei laeno, 108. Cor- rection of sinners, 109. Jurisdiction over clerks, 110. Miserahiles personae, 110. The sphere of Canon law, 110. Influence of Canon upon English law, 111. English law administered by ecclesiastics, 113. Nature of canonical influence, 113, viii Contents. CHAPTER V. The Age of Glanvill, pp. 115 — 152. The work of Henry II., 115. Constitutions of Clarendon, 116. Assize of Clarendon, 116. Inquest of Sheriffs, 116. Assize of Northampton, 117. Henry's innovations. The jury and the original writ, 117. Essence of the jury, 117. The jury a royal institution, 119. Origin of the jury: The Frankish inquest, 119. The jury in England, 120. The jury and fama puhlica, 121. The inquest in the Norman age, 122. Henrys use of the inquest, 123. The assize utrum, 123. The assize of novel disseisin, 124. Import of the novel disseisin, 125. The grand assize, 125. The assize of mort d'ancestor, 126. The assize of darrein present- ment, 127. Assize and jury, 128. The system of original writs, 129. The accusing jury, 130. Structure of the king's courts, 132. The central court, 133. Itinerant justices, 134. Cases in the king's court, 135. Law and letters, 139. Richard Pitz Neal, 140. Dialogue on the Exchequer, 140. Ranulf Glanvill : his life, 141. Tractatus de Legibus, 142. Roman and Canon law in Glanvill, 144. English and continental law-books, 145. The limit of legal memory, 147. Reigns of Richard and John, 148. The central court, 148. Itinerant justices, 149. Legislation, 149. The Great Charter, 150. Character of the Charter, 151. CHAPTER VI. The Age op Bbacton, pp. 153 — 204. Law under Henry III., 153. General idea of law, 153. Common law, 155. Statute law. The Charters, 157. Provisions of Merton, West- mmster and Marlborough, 158. Ordinance and Statute, 160. The king and the law, 160. Unenacted law and custom, 161. Local customs 163 Kentish customs, 165. Englishry of English law, 167. Equity, 168 The king's courts, 169. The exchequer, 169. Work of the ex- chequer, 170. The chancery, 172. The original writs, 174. The chancery not a tribunal, 176. The two benches and the council, 177. Council and pajhament, 178. Itinerant justices, 179. Triumph of royal justice, 181. The judges, 182. Clerical justices, 183. ^ J . Bra,cton, 185 His book, 185. Character of his work: Italian form, 186. Enghsh substance, 187. Later law books, 188. Lesal lite- rature, 189. . 6 uv- The legal profession, 190. Pleaders, 190. Attornies, 191 Non professional attornies, 192. Professional pleaders, 192. Regulation of pleaders and attornies, 194. Professional opinion, 196. Decline of Romanism, 196. Notaries and conveyancers, 197. Knowledge of the English law in Wales, 199. Enghsh law in Ireland, 200. Ensliah and Scottish law, 200. Characteristics of English law, 202, Contents. ix BOOK 11. THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES. CHAPTER I. Tenure, pp. 207 — 389. Arrangement of this book, 207. The medieval scheme of law, 207. The modern scheme, 208. Our own course, 209. § 1. Tenure in General, pp. 210 — 218. Derivative and dependent tenure, 210. Universahty of dependent tenure, 212. Feudal tenure, 213. Analysis of dependent tenure, 214. Obligations of tenant and tenement, 216. Intrinsec and forinsec ser- vice, 216. Classification of tenures, 218. § 2. Frcmkalmoin, pp. 218—230. Free alms, 218. Meaning of 'alms,' 219. Spiritual service, 221. Gifts to God and the saints, 222. Free alms and forinsec service, 223. Pure alms, 224. Frankalmoin and ecclesiastical jurisdiction, 224. The assize Dirum, 226. Defeat of ecclesiastical claims, 226. Frankalmoin in cent, xiii., 228. § 3. Knight's Service, pp. 230—262. Mihtary tenure, 230. Growth and decay of military tenure, 231. Units of military service, 232. The forty days, 233. Knight's fees, 234. Size of knight's fees, 235. Apportionment of service, 236. Apportion- ment between king and tenant in chief, 236. Honours and baronies, 238. The barony and the knight's fee, 239. Relativity of the knight's fee, 241. Duty of the mihtary tenant in chief, 241. Position of military sub- tenants, 242. Knight's service due to lords who owe none, 243. Soutage, 245. Soutage between king and tenant in chief, 247. Scutage and fines for default of service, 248. Scutage and the military sub-tenants, 250. Tenure by escuage, 251. The lord's right to scutage, 253. Reduction in the number of knight's fees, 254. Meaning of this reduction, 255. Mihtary combined with other services, 256.. Castle-guard, 257. Thegnage and drengage, 258. Tenure by barony, 258. The baronage, 259. Es- cheated honours, 260. § 4. Serjeanty, pp. 262—271. Definition of serjeanty, 262. Serjeanty and service, 262. Types of serjeanty owed by the king's tenants in chief, 262. Serjeanties due to mesne lords, 265. Military serjeanties due to mesne lords, 266. Essence of serjeanty, 267. The Serjeants in the army, 268. Serjeanty in Domes- day Book, 268. Serjeanty and other tenures, 270. P. M. ^ Contents. § 5. Socage, pp. 271—277. SooaM 271 Types of socage, 271. Extension of socage, 273 Fee fa™° 2^1 Meaning of 'socagi' 274. Socage in contrast to military tenure, 274. Socagi as the residuary tenure, 275. Burgage, f 5- Bur- gage and borough customs, 276. One man and many tenures, 276. § 6. Homage and Fealty, pp. 277—287. Homage and fealty, 277. Legal and extra-legal effects of homage, 277. The ceremony of homage, 278. The oath of fealty, 278. Liegeance, 279. Vassalism in the Norman age, 280. Bracton on homage, 281 liomage and private war, 282. Sanctity of homage, 283. Homage and felony, 284. Feudal felony, 285. Homage, by whom, done and received, 28b. ine lord's obligation, 287. § 7. Relief omd Primer Seisin, pp. 288 — 299. The incidents of tenure, 288. Heritable rights in land, 288. Be- liefs, 289. Eights of the lord on the tenant's death, 290. Prerogative rights of the king, 292. EarUer history of reliefs, 293. Belief and heriot, 293. Heritability of fees in the Norman age, 295. Mesne lords and heritable fees, 296. History of the heriot, 297. Relief on the lord's death, 298. § 8. Wa/rdsMp and Ma/rriage, pp. 299 — 310. Bracton's rules, 299. Wardship of female heirs, 300. Priority among lords, 301. What tenures give wardship, 301. Prerogative wardship, 302. The lord's rights vendible, 303. Wardship and the serjeanties, 303. The law in Glanvill, 304. Earlier law, 306. Norman law, 306. The Norman apology, 307. Origin of wardship and marriage, 308. § 9. Restraints on Alienation, pp. 310 — 330. Historical theories, 310. Modes of alienation, 310. Preliminary dis- tinctions, 312. Glanvill, 313. The Great Charter, 313. Bracton, 313. Legislation as to mortmain, 314. Alienation of serjeanties, 315. Special law for the king's tenants in chief, 316. Growth of the prerogative right, 317. Quia emptores, 318. Disputed origin of the prerogative right, 318. Summary of law after the Charter, 320. Older law, 320. Anglo-Norman charters, 321. Discussion of the charters, 322. Con- clusions as to law of the Norman age, 324. Usual form of aliena- tion, 325. General summary, 326. Gifts by the lord with his court's consent, 327. Alienation of seignories, 327. Law of attornment, 328. Practice of alienating seignories, 329. § 10. Aids, pp. 330—332. Duty of aiding the lord, 330. § 11. Escheat and Forfeiture, pp. 332 — 337. Escheat, 332. The lord's remedies against a defaulting tenant 333. Action in the king's court, 333. Distress, 334. Proceedings in the lord's court, 335. Survey of the various free tenures, 336. Contents. xi § 12. Unfree Tenure, pp. 337—366. Freehold tenure, 337. Technical meaning of ' freehold,' 338. Villein- age as tenure and as status, 339. Villein tenure : unprotected by the king's court, 340. Want of right and want of remedy, 341. Protection by manorial courts, 342. Evidence of the 'extents,' 343. Attempt to define villein tenure, 343. The manorial arrangement, 343. The field system, 345. The virgates, 345. Regularity of the system, 346. Villein services, 348. A typical case of villein services, 349. Merchet and tallage, 350. Essence of villein tenure, 351. The will of the lord, 352. Villeinage and labour, 353. Uncertainty of villein services, 354. Tests of villeinage, 354. Binding force of manorial custom, 359. Treatment of villein tenure in practice, 359. Heritable rights in villein tene- ments, 362. Unity of the tenement, 364. Alienation of villein tene- ments, 365. Villein tenure and villein status, 365. § 13. The Ancient Demesne, pp. 366—389. The ancient demesne and other royal- estates, 366. Immunities of the ancient demesne, 367. Once ancient demesne, always ancient de- mesne, 367. Peculiar tenures on the ancient demesne, 368. The little writ of right, 368. The Mongtraverunt, 370. The classes of tenants, 372. Bracton's theory, 373. Theory and practice, 374. Difftculties of classi- fication, 375. Sokemanry and socage, 377. Later theory and practice, 379. Why is a special treatment of the ancient demesne necessary ? 380. The king and the conquest settlement, 381. Royal protection of royal tenants, 383. Customary freehold, 384. No place for a tenure between freehold and villeinage, 387. The conventioners, 388. Conclusion, 389. CHAPTER II. The Sorts and Conditions op Men, pp. 390 — 511. Law of personal condition, 390. Status and estate, 391. § 1. The Earls cmd Barons, pp. 391—394. The baronage, 391. Privileges of the barons, 392. § 2. The Knights, pp. 394—395. Knighthood, 394. § 3. The Unfree, pp. 395—415. The unfree, 395. General idea of serfage, 396. Relativity of serf- age, 398. The serf in relation to his lord, 398. Rightlessness of the serf, 399. Serfdom de iwe and serfdom de facto, 400. Covenant be- tween lord and serf, 401. The serf in relation to third persons, 402. The serf's property, 402. Difficulties of relative serfdom, 403. The serf in relation to the state, 404. How men become serfs, 405. Servile birth, 405. Mixed marriages, 406. Influence of the place of birth, 407. Villeins by confession, 407. Serfdom by prescription, 408. How serfdom ceases, 410. Manumission, 410. The freedman, 411. Modes of enfran- chisement, 412. - Summary, 412. Retrospect. Fusion of villems and serfs, 413. The levelling process, 414. The number of serfs, 414. xii Contents. § 4. The Religious, pp. 416—421. Civil death, 416. Growth of the idea of civil death, 416. Difficulties arising from civil death, 418. The monk as agent, 419. The abbatial monarchy, 420. Eetum to civil life, 420. Civil death as a development of the abbot's rmmd, 421. § 5. The Clergy, pp. 422—440. Legal position of the ordained clerk, 422. The clerk under temporal law, 423. Exceptional rules applied to the clerk, 423. Benefit of clergy, 424. Trial in the courts of the church, 426. Punishment of felonious clerks, 427. What persons entitled to the privilege, 428. What offences within the privilege, 429. The Constitutions of Claren- don, 430. Henry II.'s scheme, 431. Henry's scheme and past history, 432. Henry's allegations, 432. Earlier law : the Conqueror's ordi- nance, 432. The Leges Henrici, 433. Precedents for the trial of clerks, 433. Summary, 435. ' Henry's scheme and the Canon law, 437. The murderers of clerks, 439. § 6. Aliens, pp. 441 — 450. The classical common law, 441. Who are aliens? 441. Disabilities of the alien, 442. Naturalization, 443. Law of earlier times, 443. Growth of the law disabling aliens, 444. The king and the aliens, 445. The kinds of aliens, 447. The alien merchants, 447. The alien and the common law, 448. Has the merchant a peculiar status ? 449. The law merchant, 450. § 7. The Jews, pp. 451—458. General idea of the Jews' position, 451. The Exchequer of the Jews, 452. Relation of the Jew to the king, 454. Relation of the Jew to the world at large, 455. Law between Jew and Jew, 457. Influence of the Jew upon English law, 457. § 8. Outlaws and Convicted Felons, pp. 459 461. Outlawry, 459. Condition of the outlaw, 460. § 9. Excommunicates, pp. 461 — 463. Excominunication, 461. Spiritual leprosy, 461. Excommunication and civil rights, 463. § 10. Lepers, Lunatics and Idiots, pp. 463 464. The leper, 463. The idiot, 464. The lunatic, 464. § 11. Women, pp. 465 — 468. Legal position'of women, 465. Women in private law, 465. Women m pubhc law, 465. Married women, 468. Contents. xiii § 12. Fictitious Persons, pp. 469 — 495. Fiotitiovis persons, 469. Analysis of the fiction, 469. The anthropo- morphic picture of a corporation, 471. The corporation at the end of the middle ages, 473. The corporation and its head, 474. The cor- poration in earlier times, 476. Gradual appearance of the persona ficta, 477. The law of Braoton's time, 478. The wniverdtas and the communitas, 478. Bracton and the universitas, 479. No law as to cor- porations in general, 480. Ecclesiastical corporations, 480. The saints as persons, 481. The saint's administrators, 482. Saints and churches in Domesday Book, 482. The churches as persons, 483. The parish church, 483. The abbatial church, 484. The episcopal church, 486. Disintegration of the ecclesiastical groups, 487. Communal groups of secular clerks, 488. Summary of the law about the churches, 489. Later history of the corporation, 489. Internal affairs of clerical groups, 490. The power of majorities, 491. The ecclesiastical and the temporal communities, 492. The universities, 492. The gilds, 494. Postponement of our account of the land communities, 495. § 13. The King and the Crown, pp. 495 — 511. Is there a crown? 495. Theories as to the king's two bodies, 495. Personification of the kingship not necessary, 496. The king's rights as intensified private rights, 496. The king and other lords, 497. The kingship as property, 497. The king's rights can be exercised by him, 499. The king can do wrong but no action lies against him, 500. King's land and crown land, 502. Slow growth of a law of 'capaci- ties,' 503. No lay corporations sole, 504. Is the kingdom alienable ? 505. The king can die, 506. The king can be under age, 507. Germs of a doctrine of 'capacities,' 508. Personification of the crown, 509. Ee- trospect, 510. CHAPTER III. Jurisdiction and the Communities of the Land, pp. 512 — 678. Place of the law of jurisdiction in the medieval scheme, 512. All temporal jurisdiction proceeds from the king, 513. The scheme of courts, 514. Division of the land, 514. The county court, 515. The hundred court, 515. The sheriff's turn, 515. Seignorial courts, 516. Feudal courts, 516. Franchise courts, 516. Leets, 517. Borough courts, 517. The king's courts, 517. § 1. The County, pp. 518—543. The county, 518. The county officers, 518. The county community, 520. The county court, 521. Identity of county and county court, 521. Constitution of the county court, 522. Suit of court no right, but a burden, 523. Suit of court is laborious, 523. Sessions of the court, 524. FuU courts and intermediate courts, 525. The suitors, 526. Suit is a ' real ' burden, 527. ' Reahty ' of suit, 528. The vill as a suit-owing unit, 529. Inconsistent theories of suit, 529. The court in its fullest form, 531. The communal courts in earlier times, 532. Struggle between vanous principles, 533. Suit by attorney, 533. Representative character of the county court, 534. The suitors as doomsmen, 535. A session of the county court, 536. The suitors and the dooms, 537. Powers of a majority, 539. The buzones, 540. Business of the court, 540. Outlawry in the county court, 541. Governmental functions, 542. XIV Contents. § 2^. The Hundred, pp. 543—547. The hundred as a district, 543. The hundred court, 544. Hundreds in the king's hands, 544. Hundreds in private hands, 545. Duties of the hundred, 545. The sheriff's turn, 546. § 3. The Vill cmd the Township, pp. 547 — 554. England mapped out into vills, 547. Vill and parish, 548. Discrete vills, 548. Hamlets, 549. Vill and township, 550. Ancient duties of the township, 550. Statutory duties, 551. Contribution of township to general fines, 552. Exactions from townships, 552. Miscellaneous offences of the township, 553. § 4. The Tithing, pp. 554—558. Frankpledge, 554. The system in cent, xiii., 554. Township and tithing, 555. The view of frankpledge, 556. Attendance at the view, 557. Constitution of tithings, 557. § 5. Seignorial Jurisdiction, pp. 558 — 582. Kegalities and feudal rights, 558. Acquisition of regalities, 559. Theories of royal lawyers, 559. Various kinds of franchises, 561. Fiscal immunities, 561. Immunities from personal service, 561. Immunities from forest law, 561. Fiscal powers, 562. Jurisdictional powers, 563. Contrast between powers and immunities, 565. Sake, soke, toll and team, 566. Sake and soke in cent, xiii., 566. View of frankpledge, 567. The leet, 568. The vill and the view, 568. The assize of bread and beer, 569. High justice, 570. High franchises claimed by prescription, 571. The properly feudal jurisdiction, 572. The feudal court is usually a manorial court, 572. Jurisdiction of the feudal court, 574. Civil litigation : personal actions, 574. Actions for freehold land, 575. Actions for villein land, 576. Litigation between lord and man, 576. Present- ments, 577. Governmental powers and by-laws, 578. Appellate juris- diction, 578. Constitution of the feudal court, 579. The president, 579. The suitors, 580. § 6. The Manor, pp. 582—594. The manor, 582. 'Manor' not a technical term, 583. Indefiniteness of the term, 584. A typical manor, 584. The manor house, 585. Occupation of the manor house, 586. Demesne land, 587. The freehold tenants, 588. The tenants in villeinage, 589. The manorial court, 590. Size of the manor, 591. Administrative unity of the manor, 592. Summary, 593. § 7. The Manor cmd the Township, pp. 594 — 624. Enr*^"'??^'*^^?® °^ manor and vill, 594. Coincidence assumed as normal, 695. Comcidence not always found, 596. Non-manorial vills, 597 Manors and sub-manors, 598. The affairs of the non-manorial vill 599 i-ermanent apportionment of the township's duties, 599. Allotment of financial burdens, 600. The church rate, 602. Apportionment of taxes on movables, 604. Actions against the hundred, 606. Economic affairs ot the non-manonal vill, 606. Intercommoning vills, 608. Return to Contents. xv the manorial vill, 609. Eights of common, 609. Rights of common and communal rights, 610. The freeholder's right of common, 610. The freeholder and the community, 612. Freedom of the freeholder, 612. Communalism among villeins, 613. The villein community, 614. Com- munalism and collective hability, 617. The community as farmer, 617. Absence of communal- rights, 618. Communal rights disappear upon examination, 619. Co-ownership and the persona fiota, 619. The town- ship rarely has rights, 621. The township in litigation, 622. § 8. The Borough, pp. 625—678. Cities and boroughs, 625. The viE. and the borough, 625. The borough of cent, xiii., 626. Its franchises, 626. Jurisdictional privi- leges, 627. Civil jurisdiction, 628. Criminal jurisdiction, 628. Return of writs, 629. Privileged tenure, 629. Mesne tenure in the boroughs, 629. Seignorial rights in the boroughs, 630. Customary private law, 631. Emancipation of serfs, 633. Freedom from toll, 634. Thej^ma Jmrgi, 635. The incorporeal hwrgus, 637. Property of the borough : borough lands, €38. Chattels of the borough, 640. Elective officers, 641. The governing body, 641. By-laws and self-government, 644. Limits to legislative powers, 645. Enforcement of by-laws, 645. Rates and taxes, 646. The borough's income, 647. Tolls, 648. The gild merchant, 648. The formation of a gild, 648. The gild and the government of the borough, 649. Objects of the gUd, 650. The gild and the burgesses, 651. The gild courts, 651. The borough as a franchise holder, 652. Defini- tion of a borough, 653. To whom do the borough franchises belong? 656. Discussion of the charters, 657. Charters for boroughs and charters for England, 658. Charters and laws, 658. Criticism of borough charters, 658. The bur- gesses as co-owners of the franchises, 660. Is the borough persona ficta ? 660. Arguments against the existence of corporations, 661. The offences of the borough community, 661. Offences of other communi- ties, 662. The borough as farmer, 663. The communities in litigation, 664. Debts owed to communities, 665. Collective hability, 666. Traces of the ideal person, 667. The common seal, 667. Definition of biirgher- hood, 669. Heirs and successors, 669. Burgherhood and private law, 671. The property of the borough demands an owner, 672. The borough lands, 673. The corporation required as an owner for the franchises, 674. The ideal will of the borough, 675. The creation of new communities, 676. Summary, 677. "The communities and the nation, 677. LIST OF ABBREVIATIONS. A.-S. Bl. Cpm. Co. Co. Lit. D. B. D. R. G. Fitz. Abr. Fitz. Nat. Brev. Harv. L. Rev. Lit. L. Q. R. Mon. Germ. P. C. P. Q. W. Reg. Brev. Rep. R. H. Rot. CI. Rot. Pari. Rot. Pat. Sec. Inst. Sel. Chart. X. Y. B. = Anglo-Saxon. = Blackstone's Commentaries. =Coke. = Coke upon Littleton. = Domesday Book. = Deutsche Reohtsgeschichte. =Fitzherbert's Abridgement. = Fitzherbert's Natura Brevium. = Harvard Law Review. = Littleton's Tenures. =Law Quarterly Review. = Monumenta Germaniae. = Pleas of the Crown. = Plaoita de Quo Waranto. = Registrum Brevium. = Coke's Reports. = Hundred Rolls. = Close Rolls. = Parliament Rolls. = Patent Rolls. = Coke's Second Institute. =Stubbs's Select Charters. =Decretale8 Gregorii IX. =Year Book. LIST OF TEXTS USED\ [E= Bolls Series. Eeo. Com. =Eeoord Commission. Seld. = Selden Society. Camd. = Camden Society. Surt. = Surtees Society.] Die Gesetze der Angelsachsen, ed. Eeinhold Schmid, 2nd ed., Leipzig, 1858. Collections Ancient Laws and Institutes of England, 8vo. ed. (Rec. Com.). la^s and Councils and Ecclesiastical Documents, ed. Haddan and Stubbs, vol. iii. documents. Oxford, ISVl. Quadripartitus, ed. F. Liebermann, Halle, 1892. Consiliatio Cnuti, ed. F. Liebermann, Halle, 1893. Instituta Cnuti, ed. F. Liebermann, Transactions of Royal Hist. Soc. N. S. vol. vii. p. 77. Codex Diplomaticus Aevi Saxonici, ed. J. M. Kemble (Eng. Hist. Soc). Diplomatarium Anglicum Mvi Saxonici, ed. B. Thorpe, London, 1865. Cartularium Saxonicum, ed. W. de G. Birch, 1885 in progress. Placita Anglo-Normannica, ed. M. M. Bigelow, London, 1879. Select Charters, ed. W. Stubbs, Oxford, 1881. Chartes des Libei-t^s Anglaises, ed. Ch. Bdmont, Paris, 1892. Statutes of the Realm, vol. i. (Kec. Com.), 1800. Rolls of the King's Coiui;, Ric. I. (Pipe Roll Soc). Judicial Rotuli Curiae Regis temp. Ric. I. et Joh., ed. Palgrave (Rec. Com.). Records. Placitorum Abbreviatio (Rec. Com.). Select Pleas of the Crown, 1200-1225 (Seld.). Select Civil Pleas, 1200-1203 (Seld.). Pleas of the Crown for the County of Gloucester, 1221, ed. Maitland, London, 1884. Bracton's Note Book, ed. Maitland, Cambridge, 1887. Three Assize Rolls for the County of Northumberland (Surt.). Placita de Quo Warranto (Rec. Com.). 1 For texts relating to Normandy see below, vol. i. pp. 41-2. Miscel- laneous Becords. Law- books. XVlll List of Texts. Eotuli Parliamentorum, vol. i. (official edition). Memoranda de Parliamento, 1305 (R). Select Pleas in Manorial Courts (Seld.). The Court Baron (Seld.). Durham Halmote Rolls (Surt.). The Leet Jurisdiction in Norwich (Seld.). Domesday Book (official edition). Pipe Roll of 31 Henry I. (Rec. Com.). Pipe Rolls of Henry II. (Pipe Roll Soc). Liber Niger Scaccarii, ed. Heame, Oxford, 1728. Rotuli Literarum Clausarum, 1204-1227 (Rec. Com.). Rotuli Literarum Patentium, 1201-1216 (Rec. Com.). Eotuli Chartarum, 1199-1216 (Rec. Com.). Rotuli de Oblatis et Finibus, temp. Joh. (Rec. Com.). Excerpta e Rotulis Finium, 1216-1272 (Rec. Com.). Fines, sive Pedes Finium, 1195-1215, ed. Hunter (Rec. Com.). Feet of Fines, 1182-1196 (Pipe Roll Soc). Rotuli Himdredorum, Hen. III. et Edw. I. (Rec. Com.). Parliamentary Writs (Rec. Com.). Testa de Neville (Rec. Com.). Documents illustrative of English History, ed. Cole (Rec. Com.). Calendarium Genealogioum (Rec. Com.). Foedera, Conventiones etc., ed. 1816 (Rec. Com.). Munimenta Gildhallae (R), containing Liber Albus and Liber Custumarum. Bracton, Tractatus de Legibus, ed. 1569. Britton, ed. F. M. Nichols, Oxford, 1865. Fleta, seu Commentarius Juris Anglicani, ed. 1685. Glanvill, Tractatus de Legibus, ed. 1604. Hengham, Summae, printed at the end of Selden's ed. of Fortescue, De Laudibus. rep'^rts. ^^^"^ ^°°^ °^ ^°"^' ^^~^' ^°"^' 22-^' 33-5 Edward I. (R). Sj"etc' ^^'^^^'^- Ciesta Abbatum Monasterii S. Albani (R). ■ Abingdon, Chronicon Monasterii de (E). Anglo-Saxon Chronicle (R). Annales Monastici (R). Antiquis Legibus, Liber de (Camd.). Becket. Materials for the Life of Thomas Becket (R). Benedictus Abbas. See Gesta Henrici. Brakelonda, Chronica Jocelini de (Camd.). Burton, Annales de, in Annales Monastici, vol. i. (R). List of Texts. xix Cambrensis. See Giraldus. Canterbury. See Gervase. Coggeshall, Radulphi de, Chronioon Anglicanum (R). Cotton, Bartholomaei de, Historia Anglicana (E). Diceto, Radxilfi de, Opera Historica (R). Dunstaplia, Annales Prioratus de, in Annales Monastioi, vol. iii. (R). Durham, Symeon of, The Historical Works of (R). Eadmeri, Historia Novorum (R). Edward I. and Edward II., Chronicles of (R). Eveshamensis, Chronioon Abbatiae (R). Flores Historiarum (R). Franciscana, Monumenta (R). Gervase of Canterbury, Works of (R). Gesta Henrici Secundi (Benedict of Peterborough) (R). Giraldus Cambrensis, The Works of (R). Gloucester, Metrical Chronicle of Robert of (R). Hemingburgh, Walteri de, Chronioon (Eng. Hist. Soc). Hovedene, Rogeri de, Chronica (R). Hugonis, Magna Vita S. (R). Huntendunensis, Henrici, Historia (R). Liber de Antiquis Legibus (Camd.). Malmesbiriensis, Willelmi, Gesta Regum (R). Mapes, Gualterus, de Nugis Curialium (Camd.). Melsa, Chronicon Monasterii de (R). Monte, Roberti de, Chronica, in Chronicles of Stephen etc. vol. iv. (R). Newborough, William of, in Chronicles of Stephen etc. vol. i. (R). Parisiensis, Matthaei, Chronica Majora (R). „ „ Historia Anglorum (R). Ramsey, Chronicle of the Abbey of (R). Rishanger, WiU.elmi, Chronica et Annales (R). Tewkesbury, Annals of, in Annales Monastici, vol. i. (R). Torigneio, Roberti de. Chronica, in Chronicles of Stephen etc. vol. iv. (R). Triveti, Nicholai, Annales (Eng. Hist. Soc). Waverleia, Annales de, in Annales Monastici, vol. ii. (R). Wigomiensis, Florentii, Chronicon (Eng. Hist. Soc). Wykes, Thomae, Chronicon, in Annales Monastici, vol. iv. (R). Academica, Munimenta (R). Letters, Cantuarienses, Epistolae, in Chronicles etc. of Richard I., vol. ii. (R). etc. Cantuarienses, Literae (R). Dunelmense, Registrum Palatinum (R). Grosseteste, Letters of Bishop (R). Lanfranci Opera, ed. Giles, Oxford, 1844. Northern Registers, Historical Papers and Letters from (R). Osmund, Register of St (R). Peckham, Registrum Johannis (R). Royal and other Historical Letters, Henry III. (R). Saresberiensis, Joannis, Opera, ed. Giles, Oxford, 1848. XX List of Texts. Carta- Bath, Two Chartularies (Somerset Eecord Soc. 1893) lanes. Battle, Cartulary (Camd.). Brinkbum, Cartulary (Surt.). Burton, Cartulary (Salt Society, 1884). Gloucester, History and Cartulary (R). Guisborough, Cartulary (Surt.). Malmesbiiry, Register (R). Newminster, Cartulary (Surt.). Paul's, Domesday of St (Camd.). Peterborough, Black Book of, at the end of Chi'onicon Petroburgense (Camd.). Ramsey, Cartulary (R). Rievaulx, Cartulary (Surt.). Sarum, Charters and Documents of (R). Selby, Coucher Book (Yorkshire Archaeological Soc. 1891-3). Whalley, Coucher Book (Chetham Soc. 1847). Whitby, Cartulary (Surt.). Winchcombe, Landboc, vol. i., ed. D. Royce, Exeter, 1892. Worcester, Register (Camd.). Round, Ancient Charters (Pipe Roll Soc). MadoY, Formulare Anglicanum, London, 1702. Monasticon Anglicanum; ed. 1817 etc. ADDENDA. Vol. i. p. 75. While our book has been passing throtxgh the press Dr Liebermann has been giving to the world some results of his labours among the law books of the twelfth century. His recent works are (i) Quadripartitus, Halle, 1892; (ii) Consiliatio Cnuti, Halle, 1893; (iii) Instituta Cnuti aliorumque Regum Anglonim, Transactions of Royal Historical Society, 1893 ; (iv) The text of Henry I.'s coronation charter, Transactions of Royal Historical Society, 1894; (v) Uber die Leges Anglorum saeculo xiii ineunte Londoniis coUectae, Halle, 1894 ; (vi) tjber Pseudo-Onut's Constitutiones de Foresta, Halle, 1894; (vii) Eine anglonormannische Ubersetzung des xii Jahrhunderts von Articuli Willelmi etc. in Grober's Zeitschrift fur romanische Philologie, 1895, p. 77. We may now distinguish (A) The Consiliatio Cnuti (below p. 79) ; {£) The Instituta Cnuti (below p. 79) ; (0) The Quadripartitus (below p. 76); (/>) The Leges Henrici (below p. 77); (B) The Articuli Willelmi or ffio intimatur, being a collection of the laws issued by the Conqueror (below p. 75) ; (F) The Leges Edwardi Confessoris compiled about 1130 (below p. 81); (O) A second edition of i^ described by Dr Liebermann as Leges Edwardi retractatae, and as yet found only as a part of H; {H) A tract which Dr Liebermann calls Tripartita consisting of E and O and a genealogy of Norman dukes and English kings ; this tract was put together in Stephen's reign ; (/) A French version of H made in 1192 or thereabouts; {K) Les Leis Willame, the French text of what we have (below p. 79) called the bilingual Leges Willelmi; (i) Leges Anglorum saeculo xiii ineunte Londoniis collectae, a large law book compiled in John's reign by a Londoner. It takes up into itself C, D and H, besides Glanvill's treatise; but the texts are tampered with in the interest of the city of London and the supremacy of England over Scotland. It is here that E appears in the form of a solemn charter (below p. 76) and much fabulous matter is interpolated in G (below pp. 81, 157, 519 note 3, 532 note 2); (Jf) The forest laws ascribed to Cnut (see below p. 79). This tract Dr Liebermann assigns to some forest oflaoer who wrote late in Henry II.'s reign and forged in the interest of his class. xxu Addenda. Vol. i. p. 150, note 2. As to this would-be charter of liberties, see the articles by Mr Prothero, Engl. Hist. Kev. ix. 117, and Mr Hubert Hall, Ibid. 326. Vol. i. p. 179, note 1. As to the constitution of the highest court of law in the days of Edward I., we can now refer to Pike, Constitutional History of the House of Lords, London, 1894, ch. iv. Mr Pike's conclusions do not differ widely from those that we have adopted. Vol. i. p. 190, note 1. This essay by Dr Brunner is now reprinted in his Forschungen ziir Geschichte des deutschen und franzosischen Eechtes, Stuttgart, 1894. Vol. i. p. 625. Our account of the boroughs was in print before the publication of Mrs Green's Town Life in the Fifteenth Century, London, 1894. Otherwise we should often have referred our readers to her admirable book. Had we read what she has written about the borough lands (vol. ii. p. 237), we should have explained our own opinion (see below, vol. i. p. 638) at greater length. We still think however that the borough or the communitas hurgi of the thirteenth century was but rarely a land-holder. Also we are as yet unable to accept her doctrine (vol. ii. p. 231) that there were in that age members of the communitas hurgi who were not hurgenses. On the other hand, her criticism (vol. i. p. 167) of a remark about the gild merchant hazarded in one of the Selden Society's books is perfectly just. Vol. ii. p. 79, note 1. Since our section on Seisin wa;S printed Mr Lightwood's book on The Possession of Land (1894) has appeared. We are glad to find that he has forestalled some of our conclusions, especially (p. 74) as to what we have called the relativity of ownership. Vol. ii. p. 97, note 2. This fine has recently been printed in Feet of Fines, Pipe Roll Society, 1894, p. 20. Vol. ii. p. 606. The thwa/rt nay appears also in a charter granted early in the thirteenth century by the Earl of Chester to his men and known to us through an Inspeximus of Edward I. (Rot. Pat. 28 Edw. I. m. 22). 'Et si vicecomes mens aut aliquis serviens in curia mea aliquem hominum suorum inculpaverit, per tweitnio \corr. twertnie] se defen- dere poterit propter sirrefescoht [the sheriff's scot'\ quod reddunt, nisi seota eum sequatur.' We owe this passage to Mr W. H. Stevenson. ERRATA. Vol. i. p. 9, line - 2, for disj>egen read discjiegen. p. 399, note 2, for Phillips read Phillipps. p. 534, note 4, for Phillips read Phillipps. INTEODUCTION. In the First of the two Books into which our work is divided we have endeavoured to draw a slight sketch, which becomes somewhat fuller as time goes on, of the general outlines of that part of English legal history which lies on the other side of the accession of Edward I. In the Second Book we have tried to set forth at some length the doctrines and rules of English law which prevailed in the days of Glanvill and the days of Braeton, or, in other words, under Henry II., his sons and grandson. The chapters of our First Book are allotted to various periods of history, those of the Second to various branches of law. In a short Introduction we hope to explain why we have been guilty of what may be regarded as certain offences, more especially certain offences of omission. It has been usual for writers commencing the exposition of any particular system of law to undertake, to a greater or less extent, philosophical discussion of the nature of laws in general, and definition of the most general notions of jurisprudence. We purposely refrain from any such undertaking. The philo- sophical analysis and definition of law belongs, in our judgment, neither to the historical nor to the dogmatic science of law, but to the theoretical part of politics. A philosopher who is duly willing to learn from lawyers the things of their own art is full as likely to handle the topic with good effect as a lawyer, even if that lawyer is acquainted with philosophy, and has used all due diligence in consulting philosophers. The matter of legal science is not an ideal result of ethical or political analysis ; it is the actual result of facts of human nature and history. Common knowledge assures us that in every tolerably settled community there are rules by which men are expected to order xxiv Introduction. their conduct. Some of these rules are not expressed in any authentic form, nor declared with authority by any person or body distinct from the community at large, nor enforced by any power constituted for that purpose. Others are declared by some person or body having permanently, or for the time being, public authority for that purpose, and, when so declared, are conceived as binding the members of the community in a special manner. In civilized states there are officers charged with the duty and furnished with the means of enforcing them. Of the former kind are the common rules of morals and manners, in so far as they do not coincide with rules of law. We shall find that in England, as elsewhere, and in times which must be called recent as compared with the known history of ancient civilization, many things were left to the rule of social custom, if not to private caprice or uncontrolled private force, which are now, as a matter of course, regulated by legislation, and controlled by courts of justice. By gradual steps, as singularly alike in the main in different lands and periods, at the corresponding stages of advance, as they have differed in detail, public authority has drawn to itself more and more causes and matters out of the domain of mere usage and morals ; and, where several forms of public authority have been in competition (as notably, in the history of Christendom, the Church has striven with secular princes and rulers to enlarge her jurisdiction at their expense), we find that some one form has generally prevailed, and reigns without serious rivalry. Thus, in every civilized Commonwealth we expect to find courts of justice open to common resort, where judges and magistrates appointed in a regular course by the supreme governors of the Commonwealth, or, at least, with their allowance and authority, declare and administer those rules of which the State professes to compel the observance. Moreover, we expect to find regularly appointed means of putting in force the judgments and orders of the courts, and of overcoming resistance to them, at need, by the use of all or any part of the physical power at the disposal of the State. Lastly, we expect to find not only that the citizen may use the means of redress provided and allowed by public justice, but that he may not use others. Except in cases particularly excepted, the man who takes the law into his own hands puts himself in the wrong, and offends the community. "The law is open, and there are deputies; let Introduction. xxv them implead one another." Such are for the citizen, the lawyer, and the historian, the practical elements of law. When a man is acquainted with the rules which the judges of the land will apply to any subject of dispute between citizens, or to any sJct complained of as an ofifence against the common weal, and is further acquainted with the manner in which the decision of the competent court can be enforced, he must be said to know the law to that extent. He may or may not have opinions upon the metaphysical analysis of laws or legal duty in general, or the place of the topic in hand in a scientific arrangement of legal ideas. Law, such as we know it in the conduct of life, is matter of fact ; not a thing which can be seen or handled, but a thing perceived in many ways of practical experience. Commonly there is no difficulty in recognizing it by its accustomed signs and works. In the exceptional cases where difficulties are found, it is not known that metaphysical definition has ever been of much avail. It may be well to guard ourselves on one or two points. We have said that law may be taken for every purpose, save that of strictly philosophical inquiry, to be the sum jof jhe ru les admmstered by^courts_ofjusMse. We have not said that it must be, or~tEat it always is, a sum of uniform and consistent rules (as uniform and consistent, that is, as human fallibility and the inherent difficulties of human affairs permit) ad- ministered under one and the same system. This would, perhaps, be the statement of an ideal which the modern history of law tends to realize rather than of a result yet fully accomplished in any nation. Certainly it would not be correct as regards the state of English legal institutions, not only in modern but in quite recent times. Different and more or less conflicting systems of law, different and more or less competing systems of jurisdiction, in one and the same region, are compatible with a high state of civilization, with a strong government, and with an administration of justice well enough liked and sufficiently understood by those who are concerned. Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are not merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morahty beyond the commandments of law ; no less is it true, though p. M, " xxvi introduction. less commonly recognized, that there are and must be rules of law beyond or outside the direct precepts of morality. There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even wholly indifferent what that rule shall be. When, indeed, the rule is fixed by custom or law, then morality approves and enjoins obedience to it. But the "rule itself is not a moral rule. In England men drive on the left-hand side of the road, in the United States and nearly all parts of the Continent of Europe on the right. Morality has nothing to say to this, except that those who use the roads ought to know and observe the rule, whatever it be, prescribed by the law of th& country. Many cases, again, occur, where the legal rule does not profess to fulfil anything like perfect justice, but where certainty is of more importance than perfection, and an imperfect rule is therefore useful and acceptable. Nay, more, there are cases where the law, for reasons of general policy, not only makes persons chargeable without proof of moral blame, but will not admit proof to the contrary. Thus, by the law of England, the possessor of a dangerous animal is liable for any mischief it may do, notwithstanding that he may have used the utmost caution for its safe keeping. Thus, in our modern law, a master has to answer for the acts and defaults of a servant occupied about his business, however careful he may have been in choosing and instructing the servant. Thus, again, there are cases where an obviously wrongful act has brought loss upon innocent persons, and no redress can be obtained from the primary wrong-doer. In such cases it has to be decided which of those innocent persons shall bear the loss. A typical example is the sale of stolen goods to one who buys them in good faith. The fraudulent seller is commonly out of reach, or, if within reach, of no means to make restitution. Either the true owner must lose his goods, or the purchaser must lose his money. This question, simple enough as to the facts, is on the very border-line of legal policy. Some systems of law favour the first owner, some the purchaser, and in our English law itself the result may be one way or the other, according to conditions quite independent of the actual honesty or prudence of the parties. In the dealings of modern commerce, questions which are reducible to the same principle arise in various ways which may be complicated to an indefinite extent. Evidently there Introduction. xxvii must be some law for such cases; yet no law can be made which will not seem unjust to the loser. Compensation at the public expense would, perhaps, be absolutely just, and it might be practicable in a world of absolutely truthful and prudent people. But in such a world frauds would not be committed on individuals any more than on the State. Another point worth mention is that the notion of law does not include of necessity the existence of a distinct profession of lawyers, whether as judges or as advocates. There can not well be a science of law without such a profession ; but justice can be administered according to settled rules by persons taken from the general body of citizens for the occasion, or in a small community even by the whole body of qualified citizens; and under the most advanced legal systems a man may generally conduct his own cause in person, if so minded. In Athens, at the time of Pericles, and even of Demosthenes, there was a great deal of law, but no class of persons answering to our judges or counsellors. The Attic orator was not a lawyer in the modem sense. Again the Icelandic sagas exhibit a state of society provided with law quite definite as far as it goes, and even minutely technical on some points, and yet without any professed lawyers. The law is administered by general assemblies of freemen, though the court which is to try a particular cause is selected by elaborate rules. There are old men who have the reputation of being learned in the law ; sometimes the opinion of such a man is accepted as con- clusive ; but they hold no defined office or official qualification. In England, as we shall see hereafter, there was no definite legal profession till more than a century after the Norman Conquest. In short, the presence of law is marked by the administration of justice in some regular course of time, place, and manner, and on the footing of some recognized general principles. These conditions appear to be sufficient, as they are necessary. But if we suppose an Eastern despot to sit in the gate and deal with every case according to the impression of the moment, recognizing no rule at all, we may say that he is doing some sort of justice, but we can not say that he is doing judgment according to law. Probably no prince or ruler in historical times ever really took upon himself to do right according to his mere will and pleasure. There are always points of accepted faith which even the strongest of c2 Xxviii Introduction. despots dares not offend, points of custom which he dares not disregard. At the same time the conscious separation of law from morals and religion has been a gradual process, and it has largely gone hand in hand with the marking off of special con- ditions of men to attend to religious and to legal affairs, and the development, through their special studies, of jurispru- dence and theology as distinct sciences. If there be any primitive theory of the nature of law, it seems to be that laws are the utterance of some divine or heroic person who reveals, or declares as revealed to him, that which is absolutely right. The desire to refer institutions to a deified or canon- ized legislator is shown in England, as late as the fourteenth century, by the attribution to King Alfred of everything sup- posed to be specially national and excellent. In the extant Brahmanical recensions of early Hindu law this desire is satisfied with deliberate and excessive minuteness. Wherever and whenever such notions prevail, the distinction between legal and moral duty can at best be imperfectly realized. During the age of which we are to speak in this book a grand attempt was being made to reduce morality to legal forms. In the system of the medieval Church the whole of ' external ' moral duty is included in the law of God and of Holy Church. Morality becomes a thing of arguments and judgments, of posi- tive rules and exceptions, and even of legislative declaration by the authority supreme on earth in matters of faith and morals. Many things on which Protestants are accustomed to spend their astonishment and indignation are merely the necessary consequences of this theory. We shall often have to observe that the wide and flexible jurisdiction of the spiritual power was of great service in the middle ages, both in supplementing the justice of secular courts, and in stimulating them by its formidable competition to improve" their doctrine and practice ; but a discussion of the Church's penitential system will not be expected of us. We have spoken but briefly of the law which prevailed in England before the coming of the Normans, and therefore we ought perhaps to say here that in our opinion it was in the main pure Germanic law. Question has been, made at various times as to how much of ancient British custom survived the conquest of Britain by successive invaders, and became in- Introduction. XXIX corporated in English law. We are unable to assign any definite share to this Celtic element. The supposed proofs of its existence have, so far as we are aware, no surer foundation than coincidence. Now the mere coincidence of particulars in early bodies of law proves nothing beyond the resemblance of all institutions in certain stages. There are, again, many points of real organic connexion between Celtic and English law even if there has been no borrowing from the Welshman on the Englishman's part. If there be a true affinity, it may well go back to a common stock of Aryan tradition antecedent to the distinction of race and tongue between German and Celt. And if in a given case we find that an institution or custom which is both Welsh and English is at the same time Scandinavian, Greek, Roman, Slavonic or Hindu, we may be reasonably assured that there is nothing more specific in the matter. Or, if there be a true case of survival, it may go back to an origin as little Celtic or even Aryan as it is Germanic. Some local usages, it is quite possible, may be relics of a prehistoric society and of an antiquity now immeasurable, saved by their obscurity through the days of Celt, Saxon and Norman 'alike. There is no better protection against the stronger hand; bracken and lichens are untouched by the storm that uproots oak and beech. But this is of no avail to the Celtic enthusiast, or rather of worse than none. Those who claim a Celtic origin for English laws ought to do one of two things : prove by distinct historical evidence that particular Celtic institutions were adopted by the English invaders, or point out similar features in Welsh and English law which can not be matched either in the laws of continental Germany or in those of other Aryan nations. Neither of these things, to the best of our knowledge, has ever been effectually done. Indeed the test last named would be hardly a safe one. The earliest documents of Welsh law known to exist are in their present form so much later than the bulk of our Anglo-Saxon documents that, if a case of specific borrowing could be made out on the face of them, we should need further assurance that the borrowing was not the other way. The favourite method of partisans in this kind is, as has been said, to enumerate coincidences. And by that method our English medieval law could with little ado be proved to be Greek, Slavonic, Semitic, or, for aught one knows, Chinese. We can not say that no element derived from the Celtic XXX Introduction. inhabitants of Britain exists in it, for there is no means of proving so general a negative. But there seems to be no proof nor evidence of the existence of that element in any such appreciable measure as would oblige us to take account of it m such a work as the present. Again, there is the possibility that Celtic details, assimilated in Gaul by French law during its growth, passed into England at the Norman Conquest. But it is not for us to discuss this possibility. On the other hand, no one can doubt that the English law stated and defined ia the series of dooms which stretches from ^thelbirht to Cnut finds nearer kinsfolk in the law that prevailed in Saxony and Norway and on the Lombard plain than those that it finds among the Welsh or Irish. Coming to the solid ground of known history, we find that our laws have been formed in the main from a stock of Teutonic customs, with some additions of matter, and con- siderable additions or modifications of form received directly or indirectly from the Roman system. Both the Germanic and the Eomanic elements have been constituted or reinforced at different times and from different sources, and we have thus a large range of possibilities to which, in the absence of direct proof, we must attend carefully in every case before committing ourselves to a decision. Taking first the Germanic material of our laws, we begin with the customs and institutions brought in by the English conquest of Britain, or rather by the series of conquests which led to the formation of the English kingdom. This is the prime stock ; but it by no means accounts for the whole of the Germanic elements. A distinct Scandinavian strain came in with the Danish invasions and was secured by the short period of Danish sovereignty. A third of England, a populous and wealthy third, became known as the Danelaw. To some extent, but probably to no great extent, the Norman law and practice of William the Conqueror may have included similar matter. The main importance of the Norman contribution, however, was in other kinds. Much Anglo-Norman law is Germanic without being either Anglo-Saxon or Norse. Indeed of recent years it has become the fashion upon the Continent to speak of Anglo- Norman law as a daughter of Prankish law. The Frankish monarchy, the nearest approach to a civilized power that existed in Western Europe since the barbarian invasions, was in many Introduction. xxxi things a pattern for its neighbours and for the states* and principalities that rose out of its ruins. That we received from the Normans a contribution of Frankish ideas and customs is indubitable.^ It was, indeed, hardly foreign to us, being of kindred stock, and still not widely removed from the common root of Germanic tradition. We must not omit, however, to count it as a distinct variation. Neither must we forget that English princes had already been following in some measure the same models that the Dukes of the Normans copied. From the time of Charles the Great onward, the rulers of both Mercia and Wessex were in intimate relations with the Frankish kings. Now each of these Germanic strains, the purely Anglo- Saxon, the Scandinavian, the Frankish, has had its champions. To decide between them is often a difficult, and sometimes in our opinion an impossible task. A mere ' method of agreement' is, as already said, full of dangers, and such is the imperfection of our record that we can seldom use a ' method of differences ' in any convincing fashion. Even for the sake of these somewhat remote and obscure problems, the first thing needful seems to be that we should have a fairly full statement of the English law of the Angevin time. Before we speculate about hypo- thetical causes, we ought to know as accurately as possible the effect that has to be accounted for. The speculation we must leave for the more part to those who can devote their time to a close study of Anglo-Saxon, Scandinavian and Frankish law. The English law of the Angevin age is for the present our principal theme, though we have sometimes glanced at earlier and at later times also. As to the Roman, or more properly Romanic, element in our English law, this also is a matter which requires careful distinc- tion. It has been maintained at various times, and sometimes with great ingenuity, that Roman institutions persisted after Britain was abandoned by the Roman power, and survived the Teutonic invasions in such force as to contribute in material quantity to the formation of our laws. But there is no real evidence of this. Whether the invaders may not have learnt something in the arts of peace and war from those whom they were conquering, something of strategy, architecture, agri- culture, is not here the question. We speak of law, and within the sphere of law everything that is Roman or Romanized can xxxu Introduction. be accounted for by later importation. We know that the language and the religion of Eome were effaced. Eoman Christianity had to make a fresh conquest of the English kingdom almost as if the British Church had never existed. The remnant of that Church stood aloof, and it would seem that Augustine did not think it entitled to much conciliation, either by its merits or by its importance'. It is difficult to believe that civil institutions remained continuous in a country where the discontinuity of ecclesiastical affairs is so pointedly marked, and in an age when the Church was far more stable and compact than any civil institution whatever. / And, in point of fact, there is no trace of the laws and jurisprudence of imperial Rome, as distinct from the precepts and traditions of the Roman Church, in the earliest Anglo-Saxon documents. Whatever is Eoman in them is ecclesiastical. The danger of arguing in these matters from a mere enumeration of coin- cidences has already been pointed out with reference to the attempt, in our opinion a substantially similar one, to attribute English law to a Celtic origin. This inroad of the Eoman ecclesiastical tradition, in other words, of the system which in course of time was organized as the Canon Law, was the first and by no means the least important of the Eoman invasions, if we may so call them, of our Germanic polity. We need not doubt the statement that English princes began to collect their customary laws in writing after the Eoman example made known to them by Augustine and his successors^ ^: Somewhat later the intercourse of English princes with the Frankish court brought in a fresh accession of continental learning and continental forms, in the hands of clerks indeed, but applicable to secular affairs. In this way the Eoman materials assimilated or imitated by the Franks easily found their way into England at a second remove. Many, perhaps most, of the facts that have been alleged to show the per- 1 The story that Augustine offended the Welsh bishops by not rising to receive them may be accepted as symbolically if not literally true. 2 According to Bede (ii. 5) ^Ethelbirht of Kent set dooms in writing ' iuxta exempla Eomanorum.' It is of course quite possible that a few of the more learned among the clergy may at times have studied some books of Roman Law. St Aldhelm (ob. 709) speaks as if he had done so in a letter printed by Wharton, Anglia Sacra, vol. ii. p. 6 and by Jafl6, Monumenta Moguntma, 32. On this see Savigny, Geschichte des rdmisehen Bechts, c. 6 § 135, ' ' Introduction. xxxiii sistence of Roman institutions in Britain are really of this kind. Such are for example the forms and phrases of the Latin charters or land-books that we find in the Codex Diplomaticus. A difficult question indeed is raised by these continental materials on their own ground, namely, what proportion of Germanic and Franco-Gallic usages is of Roman origin, and how far those parts that are Roman are to be ascribed to a continuous life of Roman institutions and habits in the outlying provinces of the empire, more especially in Gaul. Merovingian Gaul has been, and for a long time to come is likely to be, the battle-field of scholars, some of whom can see little that is Roman, some little that is Germanic. Interesting as these problems are, they do not fall within our present scope. A further importation of more sudden and masterful fashion came with the Norman Conquest. Not only had the Normans learnt a Romance tongue, but the dukes of Normandy had adopted the official machinery of Frankish or French govei-n- ment, including of course whatever Roman elements had been taken up by the Franks. Here again, a remoter field of inquiry lies open, on which we do not adventure ourselves. It is enough to say, at present, that institutions which have now-a- days the most homely and English appearance may nevertheless be ultimately connected, through the customs of Normandy, with the system of government elaborated in the latter centuries of the Roman Empire. The fact that this kind of Romanic influence operated chiefly in matters of procedure does not make it the less important, for procedure is the life of ancient law. But this, it need hardly be remarked, is a very different matter from a continuous persistence of unadulterated Roman elements. It may be possible to trace a chain of slender but unbroken links from the court of our William or Henry to that of Diocletian or Constantine. Such a chain, however, is by no means strengthened by the fact that Papinian was once at York, as it would in no way be weakened if that fact could be discredited. Soon after the Norman Conquest a new and a different wave of Roman influence began to flow. The first ripple of it reached our shore when Lanfranc the lawyer of Pavia became the Conqueror's trusted adviser. In the middle of the next century it was streaming outwards from Bologna in full flood. Hitherto we have been speaking of a survival of Roman law in institutions xxxiv Introduction. and habits and customs; what we have now before us is of another kind, a scholarly revival of the classical Roman law that is to be found in Justinian's books. Of this we have spoken at some length in various parts of our work. For about a century — let us say between 1150 and 1250 — this tide was shaping and modifying our English law ; and we have tried to keep before the eyes of our readers the question — to our mind one of the central questions of English history — why the rapid and, to a first glance, overwhelming flow of Romanic learning was followed in this country by an equally rapid ebb. At a later time yet other Roman elements began to make their way into our system through the equity administered by the chancellor. But of these we shall not speak in this book, for we shall not here bring down the story of our law beyond the time when Edward I. began his memorable reforms. Our reason for stopping at that moment we can give in a few words. So continuous has been our English legal life during the last six centuries, that the law of the later middle ages has never been forgotten among us. It has never passed utterly outside the cognizance of our courts and our practising lawyers. We have never had to disinter and reconstruct it in that laborious and tentative manner in which German historians of the present day have disinterred and reconstructed the law of medieval Germany. It has never been obliterated by a wholesale 're- ception' of Roman law. Blackstone, in order that he might expound the working law of his own day in an intelligible fashion, was forced at every turn to take back his readers to the middle "ages, and even now, after all our reforms, our courts are still from time to time compelled to construe statutes of Edward I.'s day, and, were Parliament to repeal some of those statutes and provide no substitute, the whole edifice of our land law would fall down with a crash. Therefore a tradition, which is in the main a sound and truthful tradition, has been main- tained about so much of English legal history as lies on this side of the reign of Edward I. We may find it in Blackstone ; we may find it in Reeves ; we may find many portions of it in various practical text books. We are beginning to discover that it is not all true ; at many points it, has of late been corrected. Its besetting sin is that of antedating the emergence of modem ideas. That is a fault into which every professional tradition is Introduction. XXXV wont to fall. But in the main it is truthful. To this must be added that as regards the materials for this part of our history we stand very much where Blackstone stood. This we write to our shame. The first and indispensable preliminary to a better legal history than we have of the later middle ages is a new, a complete, a tolerable edition of the Year Books. They should be our glory, for no other country has anything like them : they are our disgrace, for no other country would have so neglected them. On the other hand, as regards the materials which come from a slightly earlier time, we do not stand nearly where Blackstone stood. The twelfth and thirteenth centuries have been fortunate in our own age. Very many and some of the best and most authentic of the texts on which we have relied in the following pages were absolutely unknown to Blackstone and to Reeves. To the antiquaries of the seventeenth century high praise is due ; even the eighteenth produced, as it were out of due time, one master of records, the diligent Madox ; but at least half of the materials that we have used as sources of first-hand knowledge have been published for the first time since 1800, by the Record Commissioners, or in the Rolls Series, or by some learned society, the Camden or the Surtees, the Pipe Roll or the Selden. Even while our pages have been in the press Dr Liebermann has been restoring to us the law-books of the twelfth century. Again, in many particular fields of old English law — ^villeinage, for example, and trial by jury and many another — so much excellent and very new work has been done by men who are still living, by Germans, Frenchmen, Russians as well as Englishmen and Americans, and so much of it lies scattered in monographs and journals — we should be ungrateful indeed did we not name the Harvard Law Review — that the time seemed to have come when an endeavour to restate the law of the Angevin age might prosper, and at any rate ought to be made. Our purpose at one time was to have turned back from the Angevin to the Norman time for the purpose of setting before our readers in a Third Book some speculations as to the true intent and meaning of the Domesday Survey, for we hold with Mr Seebohm that the study of that enigmatical record should come after and not before the study of less obscure texts. But our work grew in our hands and has become all too bulky. Divers other reasons also have persuaded xxxvi Introduction. us that what we had schemed and even written about Domesday Book had better wait for a while'. One of our hopes has been that we might take some part in the work of bringing the English law of the thirteenth century into line with the French and German law of the same age. That is the time when French law is becoming clear in Les Olim, in Beaumanoir's lucid pages, in the so-called Establishments of St Louis, in the Norman custumal and in many other books. It is also the classical age of German law, the age of the Sachsenspiegel. We have been trying to do for English law what has within late years been done for French and German law by a host of scholars. We have often had before our minds the question why it is that systems which in the thirteenth century were so near of kin had such different fates before them. The answer to that question is assuredly not to be given by any hasty talk about national character. The first step towards an answer must be a careful statement of each system by itself. We must know in isolation the things that are to be compared before we compare them. A small share in this preliminary labour we have tried to take. Englishmen should abandon their traditional belief that from all time the con- tinental nations have been ruled by ' the civil law,' they should learn how slowly the renovated Roman doctrine worked its way into the jurisprudence of the parliament of Paris, how long de- ferred was ' the practical reception ' of Roman law in Germany, how exceedingly like our common law once was to a French coutume. This will give them an intenser interest in their own history. What is more, in the works of French and German medievalists they will now-a-days find many an invaluable hint for the solution of specifically English problems. We have left to Constitutional History the field that she has appropriated. An exact delimitation of the province of law that should be called constitutional must always be difficult, except perhaps in such modern states as have written constitu- tions. If we turn to the middle ages we shall find the task impossible, and we see as a matter of fact that the historians of • Our readers must therefore be asked to forgive a few phrases which seem to promise a discourse on Domesday. [My own contributions in the shape of a paper in the Transactions of the Devonshire Association for 1893, and the Presidential Address which opens the volume for 1894, are published for what they may be worth, but must be taken as provisional. — P. P.] Introduction. xxxvii our constitution are always enlarging their boundaries. Though primarily interested in such parts of the law as are indubitably constitutional, they are always discovering that in order to explain these they are compelled to explain other parts also. They can not write about the growth of parliament without writing about the law of land tenure; 'the liberty of the subject ' can only be manifested in a discourse on civil and criminal procedure. It may be enough therefore if, without any attempt to establish a scientific frontier, we protest that we have kept clear of the territory over which they exercise an effective dominion. Our reason for so doing is plain. We have no wish to say over again what the Bishop of Oxford has admirably said, no hope of being able to say with any truth what he has left unsaid. Besides, for a long time past, ever since the days of Selden and Prynne, many Englishmen have been keenly interested in the history of parliament and of taxation and of all that directly concerns the government of the realm. If we could persuade a few of them to take a similar interest in the history of ownership, possession, contract, agency, trust, legal proof and so forth, and if we could bring the history of these, or of some of these, matters within a measurable distance of that degree of accuracy and completion which constitutional history has attained in the hands of Dr Stubbs, we should have achieved an unlooked-for success. At the same time, we shall now and again discuss some problems with which he and his predecessors have busied themselves, for we think that those who have endeavoured to explore the private law of the middle ages may occasionally see even in political events some clue which escapes eyes that are trained to look only or chiefly at public affairs. The constitutional is not the only department of medieval law that we have left on one side. We have said very little of purely ecclesiastical matters. Here again we have been compelled to draw but a rude boundary. It seemed to us that a history of English law which said nothing of marriage, last wills, the fate of an intestate's goods, the punishment of criminous clerks, or which merely said that all these affairs were governed by the law and courts of the church, would be an exceedingly fragmentary book. On the other hand, we have not felt called upon to speak of the legal constitution of the ecclesiastical hierarchy, the election and consecration of bishops, xxxviii Introduction. the ordination of clerks, the power of provincial councils and so forth, and we have but now and then alluded to the penitential system. What is still the sphere of ecclesiastical law we have avoided ; into what was once its sphere we could not but make incursions. At other points, again, our course has been shaped by a desire to avoid what we should regard as vain repetition. When the ground that we traverse has lately been occupied by a Holmes, Thayer, Ames or Bigelow, by a Brunner, Liebermann or Vinogradoff, we pass over it rapidly ; we should have dwelt much longer in the domain of criminal law if Sir James Stephen had not recently laboured in it. And then we have at times devoted several pages to the elucidation of some question, perhaps intrinsically of small importance, which seemed to us difficult and unexplored and worthy of patient discussion, for such is the interdependence of all legal rules that the solution of some vital problem may occasionally be found in what looks at first sight like a technical trifle. We have thought less of symmetry than of the advancement of knowledge. The time for an artistically balanced picture of English medieval law will come : it has not come yet. BOOK I. SKETCH OF EAELY ENGLISH LEGAL HISTOEY. CHAPTER I. ANGLO-SAXON LAW. rpHIS book is concerned with Anglo-Saxon legal antiquities, Scope of -■- but only so far as they are connected with the subsequent chapter, history of the laws of England, and the scope of the present chapter is limited by that purpose. The habit of preserving some written record of all affairs of imperfec- importance is a modern one in the north and west of Europe. tj?itten But it is so prevalent and so much bound up with our daily ™™'^^^'° , v. . . early habits m modem life that we have almost forgotten how much Germanic of the world's business, even in communities by no means barbarous, has been carried on without it. And the student of early laws and institutions, although the fact is constantly thrust upon him, can hardly accept it without a sort of con- tinuing surprise. This brings with it a temptation of some practical danger, that of overrating both the trustworthiness of written documents and the importance of the matters they deal with as compared with other things for which the direct authority of documents is wanting. The danger is a specially besetting one in the early history of English law; and that inquirer is fortunate who is not beguiled into positive error by the desire of making his statements appear less imperfect. In truth, the manners, dress, and dialects of our ancestors before the Norman Conquest are far better known to us than their laws. Historical inquiry must be subject, in the field of law, to peculiar and inevitable difficulties. In most other cases the evi- P. M. .1 Anglo-Saxon Law. [bk. i. deuce, whether full or scanty, is clear so far as it goes. Arms, ornaments, miniatures, tell their own story. But \vritten laws and legal documents, being written for present use and not for the purpose of enlightening future historians, assume knowledge on the reader's part of an indefinite mass of received custom and practice. They are intelligible only when they are taken as part of a whole which they commonly give us little help to conceive. It may even happen that we do not know whether a particular document or class of documents represents the normal course of affairs, or was committed to writing for the very reason that the transaction was exceptional. Even our modern law is found perplexing, for reasons of this kind, not only by foreigners, but by Englishmen who are not lawyers. We cannot expect, then, that the extant collections of Anglo-Saxon laws sliould give us anjrthing like a complete view of the legal or judicial institutions of the time. Our Germanic ancestors were no great penmen, and we know that the reduction of any part of their customary laws to writing was in the first place due to foreign influence. Princes who had forsaken heathendom under the guidance of Roman clerks made haste, according to their lights, to imitate the ways of imperial and Christian Rome. It is worth while to bear in mind, when we are thinking of any possible influence of Roman forms and institutions in England before the Norman Conquest, that there can be no question of Justinian's Corpus Juris. For the legislation of Justinian was still a new thing in the Eastern Empire itself at the date of Augustine's mission to the kingdom of Kent, -^thelbirht had ruled the men of Kent some five years in 565, when Justinian died. Although English princes issued written dooms with the advice of their wise men at intervals during nearly five centuries, it seems all but certain that none of them did so with the intention of constructing a complete body of law. The very slight and inconspicuous part which procedure takes in the written Anglo-Saxon laws is enough to show that they are mere superstructures on a much larger base of custom. All they do is to regulate and amend in details now this branch of customary law, now another. In short their relation to the laws and customs of the country as a whole is not unlike that which Acts of Parliament continue to bear in our own day to the indefinite mass of the common law. CH. I.] Angl'O-Saxon Law. Our knowledge of Anglo-Saxon law rests, so far as positive evidence goes, on several classes of documents which supplement one another to some extent, but are still far from giving a complete view. We have a considerable series of laws and ordinances of Anglo- Saxon and English' princes, beginning with those of ^thelbirht dooms and of Kent, well known to general history as Augustine's convert, ''"^*"™'' '• which are of about the end of the seventh century. The custumal preserved in French and Latin under the name 6f William the Conqueror may be said to close the list; for the Latin collection called the laws of Henry I. is the work of a pious and well-meaning antiquary, according to his lights, and not of a legislator or practical lawyer. This belongs to the second class of documents, namely, compilations of customs and formulas which are not known ever to have had any positive authority, but appear to have been put together with a view to practical use, or at least to preserve the memory of things which had been in practice, and which the writer hoped to see in practice again. Perhaps our most important witness of this kind is the tract or custumal called ' Rectitudines singularum personarum.' Some of the so-called laws are merely semi- official or private compilations, but their formal profession of an authority they really had not makes no difference to their value as evidence of what the compilers understood the customary law to have been. To some extent we can check them by their repetition of matter that occurs in genuine Anglo-Saxon laws of earlier dates. Apocr3rphal documents of this kind are by no means confined to England, nor, in English history, to the period before the Conquest. Some examples from the thirteenth century have found their way into the worshipful company of the Statutes of the Realm among the 'statutes of uncertain time.' It has been the work of more than one generation of scholars to detect their true character, nor indeed is the work yet wholly done. From the existence and apparent, sometimes real, importance of such writings and compilations as we have now mentioned there has arisen the established usage of in- cluding them, together with genuine legislation, under the 1 No distinetiTely Mercian dooms have been preserved. The Kentish dooms extend over more than a century, and the time of Wihtrasd of Kent overlaps that of Ine of Wessex. Nevertheless they form a compact group of archaic type distinct from the main line which begins in Wessex. 1—2 Anglo-Saxon Law. [bk. i. common heading of ' Anglo-Saxon laws.' As for the deliberate fables of later apocryphal authorities, the ' Mirror of Justices ' being the chief and flagrant example, they belong not to the Anglo-Saxon but to the medieval period of English law. We shall have to consider later what their worth, discreetly assayed, may be for their own period*. Charters. Another kind of contemporary writings affords us most valuable evidence for the limited field of law and usage which those writings cover. The field, however, is even more limited than at first sight it appears to be. We mean the charters or 'land-books' which record the munificence of princes to religious houses or to their followers, or in some cases the administration and disposition of domains thus acquired. Along with these we have to reckon the extant Anglo-Saxon wills, few in number as compared with charters properly so-called, but of capital importance in fixing and illustrating some points. It was Kemble's great achievement to make the way plain to the appreciation and use of this class of evidences by his 'Codex Diplomaticus.' We have to express opinions more or less widely different from Kemble's on several matters, and therefore think it well to say at once that no one who has felt the difference between genius and industrious good inten- tions can ever differ with Kemble lightly or without regret. Kemble's work often requires correction ; but if Kemble's work had not been, there would be nothing to correct. Chronicles, Then we have incidental notices of Anglo-Saxon legal matters in chronicles and other writings, of which the value for this purpose must be judged by the usual canons of coin- cidence or nearness in point of time, the writer's means of access to contemporary witness or continuous tradition not otherwise preserved, his general trustworthiness in things more easily verified, and so forth. Except for certain passages of Bede, we do not think that the general literary evidence, so to call it, is remarkable either in quantity or in quality. Such as we have is, as might be expected, of social and economic interest in the first place, and throws a rather indirect light upon the legal aspect of Anglo-Saxon affairs. Anglo- Lastly, we have legal and official documents of the Anglo- documents. Norman time, and foremost among them Domesday Book, which 1 Our references will be made to the second edition of Sohmid's Gesetze der Angelsaohsen. OH. I.] Anglo-Saxon Law. 5 expressly or by implication tells us much of the state of England immediately before the Norman Conquest. Great as is the value of their evidence, it is no easy matter for a modern reader to learn to use it. These documents, royal and other inquests and what else, were composed for definite practical uses. And many of the points on which our curiosity is most active, and finds itself most baffled, were either common knowledge to the persons for whose use the documents were intended, or were not relevant to the purpose in hand. In the former case no more information was desired, in the latter none at all. Thus the Anglo-Norman documents raise problems of their own which must themselves be solved before we can use the results as a key to what lies even one generation behind them. On the whole the state of English law before the Conquest Sunrey of presents a great deal of obscurity to a modern inquirer, not so gafon much for actual lack of materials as for want of any sure clue to g^tft„t|^jja their right interpretation at a certain number of critical points. Nevertheless we cannot trace the history of our laws during the two centuries that followed the Conquest without having some general notions of the earlier period ; and we must endeavour to obtain a view that may suffice for this purpose. It would be a barren task to apply the refined classification of modern systems to the dooms of Ine and Alfred or the more ambitious definitions of the ' Leges Henrici Primi.' We shall take the main topics rather in their archaic order of importance. First comes the condition of persons ; next, the establishment of courts, and the process of justice; then the rules applicable to breaches of the peace, wrongs and offences, and finally the law of property, so far as usage had been officially defined and enforced, or new modes of dealing with property introduced. The origin and development of purely political institutions has been purposely excluded firom our scope. As regards personal condition, we find the radical distinction, personal universal in ancient society, between the free man and the slave, lorfship"^' But in the earliest English authorities, nay, in our earliest accounts of Germanic society, we do not find it in the clear-cut simplicity of Roman law. There is a great gulf between the lowest of free men and the slave ; but there are also differences of rank and degrees of independence among free men, which already prepare the way for the complexities of medieval society. Some free men are lords, others are dependents or followers of Anglo-Saxon Law. [bk. lords. We have nothing to show the origin or antiquity of this division ; we know that it was the immemorial custom of Ger- manic chiefs to surround themselves with a band of personal followers, the comites described by Tacitus, and we may suppose that imitation or repetition of this custom led to the relation of lord and man being formally recognised as a necessary part of public order. We know, moreover, that as early as the first half of the tenth century the division had become an exhaustive one. An ordinance of ^thelstan treats a ' lordless man ' as a suspicious if not dangerous person ; if he has not a lord who will answer for him, his kindred must find him one ; if they fail in this, he may be dealt with (to use the nearest modem terms) as a rogue and vagabonds The term ' lord ' is applied to the king, in a more eminent and extensive but at the same time in a looser sense, with reference to all men owing or professing allegiance to him"; and this usage, preserved in the words of English records and documents of state to the present day, may strengthen the inference that the king's lordship, as it was the chiefest of earthly powers among his people, was the original type on which the power of other lords was modelled. In any case this pervading division of free persons into lords and men, together with the king's position as general over-lord, combined at a later time with the prevalence of dependent land tenures to form the more elaborate arrangements and theories of medieval feudalism. It does not seem possible either to assign any time in English history when some free men did not hold land from their personal lords, or to assign the time when this became a normal state of things. In the latter part of the ninth century there was already a considerable class of free men bound to work on the lands of others, for an ordinance of Alfred fixes the holidays that are to be allowed them ; and we can hardly doubt that this work was incident to their own tenured At all events dependent land-holding appears to have been common in the century before the Norman Conquest. It was the work of the succeeding century to establish the theory that all land must be held of some one as a fixed principle of English law, and to give to the conditions of tenure as distinct from the personal status 1 atheist, ii. 2. A man who was considerable enough to have only the king above him required, of course, no other lord. ' A.-S. Chron. sub anno 921. 9 MM 43. CH. I.] Anglo-Saxon Law. 7 of the tenant an importance which soon became preponderant, and had much to do with the ultimate extinction of personal servitude under the Tudor dynasty'. Dependence on a lord was not the only check on the ThefamUy. individual freedom of a freeborn man. Anglo-Saxon polity preserved, even down to the Norman Conquest, many traces of a time when not the individual, but the family or the kindred, was the unit of the common weal, controlling its members in many ways, and answerable for them in matters of both public and private right. Such a stage of society, we hardly need add, is not confined to any one region of the world or any one race of men. In its domestic aspect it is the joint family or household which is still an integral part of Hindu and South Slavonic life. When it' puts on the face of strife between hostile kindreds, it is shown in the war of tribal factions, and more specifically in the blood-feud. A man's kindred are his avengers ; and, as it is their right and honour to avenge him, so it is their duty to make amends for his misdeeds, or else maintain his cause in fight. Step by step, as the power of the State waxes, the self-centred and self-helping autonomy of the kindred wane^ Private feud is controlled, regulated, put, one may say, into legal harness ; the avenging and the protecting clan of the slain and the slayer are made pledges and auxiliaries of public justice. In England the legalised blood-feud expired almost within living memory, when the criminal procedure by way of 'appeal' was finally abolished. We have to conceive, then, of the kindred not as an artificial body or corporation to which the State allows authority over its members in order that it may be answerable for them, but as an element of the State prior to the State itself There is a constant tendency to conflict between the old customs of the family and the newer laws of the State; the family preserves archaic habits and claims which clash at every turn with a development of a law-abiding commonwealth in its modern type. In England, as late as the tenth century'', we find that a powerful kindred may still be a danger to public order, and that the power of three counties may be called out to bring an offending member of it to justice. At the same time the family was utilised by the growing institutions of the ' A solitary claim of villeinage is reported in the reign of James I. 2 atheist, vi. (ludicia oivitatis Lundoniae) 8, § 2. 8 Anglo-Saxon Law. [bk. i. State, so far as was found possible. We have seen that a lordless man's kinsfolk might be called upon to find him a lord. In other ways too the kindred was dealt with as representing its members'. We need not however regard the kindred as a defined body like a tribe or clan, indeed this would not stand with the fact that the burden of making and the duty of exacting compensation ran on the mother's side as well as the father's. A. father and son, or two half-brothers, would for the purposes of the blood-feud have some of their kindred in common, but by no means all. The legal importance of the kindred continues to be recognised in the very latest Anglo-Saxon custumals, though such details as we find on the subject in the so-called laws of Henry I. fall under grave suspicion not merely of an antiquary's pedantic exaggeration, but of deliberate copying from other Germanic law- texts. It is probable that a man could abjure his kindred, and that the oath used for the purpose included an express renunciation of any future rights of inheritance. We do not know whether this was at all a common practice, or whether any symbolic ceremonies like those of the Salic law \ were or ever had been required in England''. Banks: Further, we find distinctions of rank among freemen which, gesK.**""^'' tliough not amounting to fundamental differences of condition, and not always rigidly fixed, had more or less definite legal incidents. From the earliest times a certain pre-eminence is accorded (as among almost all Germanic people)' to men of noble birth. The ordinary freeman is a ' ceorl,' churl (there is no trace before the Norman Conquest of the modern degrada- tion of the word) ; the noble by birth is an ' eorl' This last word came later, under Danish infiuence, to denote a specific office of state, and our present ' earl ' goes back to it in that sense. The Latin equivalent comes got specialised in much the same way. But such was not its ancient meaning. Special relations to the king's person or service produced another and somewhat different classification. 'Gesi?S' was the earliest 1 Kemble, Saxons in England, i. 261. The A.-S. term for the kindred is 'msBgtS,' in Latin versions 'parentela.' 2 Hen. 88, § 13 ; Sohmid points out the strong resemblance to Lex Sal. 60 ' De eum qui se de parentilla tollere vult. ' ■^ Grimm, Deutsche Eeohtsalterthiimer, bk. i. o. ii. 265 sqq. Brunner Deutsche Bechtageschichte, i. 95. CH. I.J Anglo-Saxon Law. 9 English equivalent, in practical as well as literal meaning, of comes as employed by Tacitus ; it signified a well-born man attached to the king by the general duty of warlike service, though not necessarily holding any special office about his person. It is, however, a common poetic word, and it is not confined to men. The element of noble birth is emphasised by the fuller and commoner form ' gesitScund.' We must notice here the opinion that a man lost personal freedom, or at any rate the ordinary political rights of a freeman, by becoming one of the king's companions, inasmuch as it was put forward by no less an author than Kemble. It is, however, untenable. There is nothing to bear it out in Tacitus ; his statement that it was no shame to young men of good family to profess themselves a chief's 'companion' does not imply any such matter, and indeed seems intended to guard against possible surprise or incredulity on the part of Roman readers, looking on Germanic usage from their own point of view, as to the existence of such relations between freemen of approximately equal rank. Neither does any English or other Teutonic authority, so far as we know, support Kemble's idea that a 'gesiS' was in some way unfree, Kemble appears on this, as on some other points, to have been carried away by an exalted conception of primitive Germanic freedom^ But perhaps the point is purely antiquarian, for the term 'gesiS' disappears as early as Alfred's time ; and it certainly would have been a gross affront to both man and lord to tax any immediate follower of Godwin or Harold, not to speak of the Conqueror, with servile condition. Probably it would have been as ready a way as any of making sure whether the man so addressed could at any rate use a free warrior's weapons. The official term of rank which we find in use in and after Thane. Alfred's time is 'thane' (J^egen, in Latin usually 'minister'). Originally a thane is a household officer of some great man,J eminently and especially of the king. From the tenth century to the Conquest thaneship is not an office unless described by some specific addition (horsj^egen, dis|?egen, and the like) showing what the office was. It is a social condition above > Saxons in England, i. 166 sqq. ; K. Maurer in Kritische Uebersohau, ii. 391. Kemble's quotation from Beowulf (p. 171) is really against him. Faithless 'companions' are to forfeit their land-right. But unfree men could not have had any. 10 Anglo-Saxon Law. [bk. i. that of the churl, carrying with it both privileges and custom- ary duties. The ' king's thanes,' those who are in fact attached to the king's person and service, are specially distinguished. We may perhaps roughly compare the thanes of the later Anglo-Saxon monarchy to the country gentlemen of modern times who are in the commission of the peace and serve on the grand jury. But we must remember that the thane had a definite legal rank. His wergild for example, the fixed sum with which his death must be atoned for to his kindred, or which he might in some cases have to pay for his own misdoing, was six times as great as a common man's; and his oath weighed as much more in the curious contest of asseverations, quite different from anything we now understand by evidence, by which early Germanic lawsuits were decided. It is stated in the document called ' Ranks' by Thorpe that a thane's rights might be claimed by the owner of five hides (at the normal value of the hide, 600 acres) of land, a church and belfry, a 'burgh-gate-sea.f (which may imply a private jurisdiction, or may only signify a town house), and a special place in the king's hall. The like right is ascribed to a merchant who has thrice crossed ' the wide sea' (the North Sea as opposed to the Channel) at his own charges. This may be suspected, in the absence of confirmation, of being merely the expression of what, in the writer's opinion, an enlightened English king ought to have done to encourage trade; still it is not im- probable. We have no reason to reject the tradition about the five hides. It is borne out by such evidence as there is, and accounts for the post-Norman statement that five hides make a knight's fee', which, as a general statement, does not agree with the facts of the Anglo-Norman system ^ But this gives us no warrant in any case for denying that a thane might have less than five hides of land, or asserting that he would forfeit his rank if he lost the means of supporting it on the usual scale'. However, these details are really of no importance in the general history of the law, for they left no visible mark on the structure of Anglo-Norman aristocracy. 1 ' Miles' is a common translation of ' )>egen.' ^ 3. H. Round in Eng. Hist. Eev. vii. 11. Knight's fees were often of five hides, 'survivals from the previous regime:' but 'no fixed number of hides constituted a knight's fee.' » In fact many much smaller holdings are stated in Domesday to belong or to have belonged T. E. E. to thanes. E.g. Bovi (Bovey Tracy, Devon) Exon. D. 126. OH. I.J Anglo-Saxon Law. 11 The last remark applies to certain other distinctions which Other dis- are mentioned in our authorities as well known, but never distinctly explained. We read of ' twelf-hynd ' and ' twy-hynd ' men, apparently so called from their wergild being twelve hundred and two hundred shillings respectively \ There was also an intermediate class of ' six-hynd' men. It would seem that the ' twelf-h3m.d' and the 'six-hynd' men were thanes, and the 'twy-hynd' man might or might not be. But these things perhaps had no more practical interest for Glanvill, certainly no more for Bracton, than they have for us. In Uke manner, the privileges of clerks in orders, whether Privileges of cld'Erv. of secular or regular life, do not call for close investigation here. Orders were regarded as conferring not only freedom where any doubt had existed, but a kind of nobility. There was a special scale of wergild for the clergy ; but it was a question whether a priest who was in fact of noble birth should not be atoned for with the wergild appropriate to his birth, if it exceeded that which belonged to his ecclesiastical rank, and some held that for the purpose of wergild only the man's rank by birth should be considered. It is well known that the superior clergy took (and with good cause) a large part in legislation and the direction of justice, as well as in general government. Probably we owe it to the Church that Anglo-Saxon law has left us any written evidences at all. But the really active and important part of the clergj- in the formation of English law begins only with the clear separation of ecclesiastical and civil authority after the Conquest. We now have to speak of the unfree class. Slavery, personal slavery, and not merely serfdom or villein- siarei-y age consisting mainly in attachment to the soil, existed, and trade, was fully recognised, in England until the twelfth century. W^e have no means of knowing with any exactness the number of slaves, either in itself, or as compared with the free popula- tion. But the recorded manumissions would alone suffice to prove that the number was large. Moreover, we know not only that slaves were bought and sold, but that a real slave- trade was carried on from English ports. This abuse was increased in the evil times that set in with the Danish invasions. Raids of heathen Northmen, while they relaxed social order and encouraged crime, brought wealthy slave- 1 ' Be Wergilde,' App. vii. in Schmid. 12 Anglo-Saxon Law. [bk. i. buyers, who would not ask many questions, to the unscrupulous trader's hand. But slaves were exported from England much earlier. Selling a man beyond the seas occurs in the Kentish laws as an alternative for capital punishment' ; and one obscure passage seems to relate to the offence of kidnapping freeborn men^ Ine's dooms forbade the men of Wessex to sell a countryman beyond seas, even if he were really a slave, or justly condemned to slavery^ Selling Christian men beyond seas, and specially into bond- age to heathen, is forbidden by an ordinance of .^thelred, repeated almost word for word in Cnut's laws*. Wulfstan, archbishop of York, who probably took an active part in the legislation of ^Jlthelred, denounced the practice in his homilies", and also complained that men's thrall-right was narrowed. This is significant as pointing to a more humane doctrine, whatever the practice may have been, than that of the earlier Roman law. It seems that even the thrall had personal rights of some sort, though we are not able with our present informa- tion to specify them. Towards the end of the eleventh century the slave trade from Bristol to Ireland (where the Danes were then in power) called forth the righteous indignation of another Wulfstan, the bishop of Worcester, who held his place through the Conquest. He went to Bristol in person, and succeeded in ' putting down the scandal". Its continued existence till that time is further attested by the prohibition of -^thelred and Cnut being yet again repeated in the laws attributed to William the Conqueror'. Manu- Free men sometimes enslaved themselves in times of distress as the only means of subsistence ; manumission of such persons after the need was past would be deemed a specially meri- torious work, if not a duty^. Sometimes well-to-do people ' Wiht. 26. ^ HI. and B. 5, see Sohmid thereon. The slave-traders were often foreigners, commonly Jews. Ireland and Gaul were the main routes. • In. 11. 4 ^thelr. V. 2, vi. 9 ; Cn. ii. 3 ; of. Lex Bib. 16, Lex Sal. 39 § 2. '> Bd. A. Napier, Berlin, 1883, pp. 129, n., 158, 160-1. * Will. Malm. Vita Wulstani, in Wharton, Anglia Sacra, ii. 258 ; quoted nearly in full. Freeman, Norman Conquest, iv. 386. ' Leges Willelmi, i. 41. " God. Dipl. 925 (manumission by Geatflsed of ' all the men whose heads she took for their food in the evil days.') This and other examples are conveniently collected at the end of Thorpe's Diplomatarium. mission. CH. I.] Anglo-Saxon Law. 13 bought slaves, and immediately afterwards freed them for the good of their own souls, or the soul of some ancestor. At a later time we meet with formal sales by the lord to a third person in trust (as we should now say) to manumit the serf*. The Anglo-Saxon cases do not appear to be of this kind. Sometimes a serf 'bought himself free. We may suppose that a freedman was generally required or expected to take his place among the free dependents of his former master ; and the express license to the freedman to choose his own lord, which is occasionally met with, tends to show that this was the rule. The lord's rights over the freedman's family were not affected if the freedman did leave the domain". There is nothing to suggest that freedmen were treated as a distinct class in any other way. What has just been said implies that a bondman might acquire, and not unfrequently did acquire, money of his own ; and, in fact, an ordinance of Alfred expressly makes the Wednesday in the four ember weeks a free day for him, and declares his earnings to be at his own disposaP. Moreover, even the earliest written laws constantly assume that a ' theow ' might be able to pay fines for public offences. On the whole the evidence seems to show that serfdom was much more of a personal bondage and less involved with occupation of particular land before the Norman Conquest than after; in short that it approached the slavery of the Roman law. Once, and only once, in the earliest of our Anglo-Saxon texts*, we find mention, under the name of Icet, of the half-free class of persons called litus and other like names in continental documents. To all appearance there had ceased to be any such class in England before the time of Alfred: it is therefore needless to discuss their condition or origin. There are traces of some kind of public authority having been required for the owner of a serf to make him free as regards third persons ; but from almost the earliest Christian times manumission at an altar had full effects In such cases a written record was commonly preserved in the later Anglo- Saxon period at any rate, but it does not appear to have been 1 L. Q. E. vii. 64. 2 Wiht. 8 : an archaic authority, but there is nothing to show any change. 3 M\t 43 (as Schmid and the Latin version take it). Cp. Theod. Pen. xiii. 3 (Haddan and Stubbs, Councils, iii. 402). ■> .ffithelb. 26. 5 Wiht. 8 : ' If one manumits his man at the altar, let him be folk-free.' 14 Anglo-Saxon Law. [bk. i. necessary or to have been what we should now call an operative instrument. This kind of manumission disappears after the Conquest, and it was long disputed whether a freed bondman might not be objected to as a witness or oath-helper\ Courts and We now turn to judicial institutions. An Anglo-Saxon lllsllPP court, whether of public or private justice, was not surrounded with such visible majesty of the law as in our own time, nor furnished with any obvious means of compelling obedience. It is the feebleness of executive power that explains the large space occupied in archaic law by provisions for the conduct of suits when parties make default. In like manner the solemn prohibition of taking the law into one's own hands without having demanded one's right in the proper court shows that law is only just becoming the rule of life. Such provisions occur as early as the dooms of Ine of Wessex", and preserve the tradition of a time when there was no jurisdiction save by consent of the parties. Probably the public courts were always held in the open air; there is no mention of churches being used for this purpose, a practice which was expressly forbidden in various parts of the Continent when court houses were built. Private courts were held, when practicable, in the house of the lord having the jurisdiction, as is shown by the name halimote or hall-moot. This name may indeed have been given to a lord's court by way of designed contrast with the open-air hundred and county courts. The manor-house itself is still known as a court in many places in the west and south-east of England'. Halimote is not known, however, to occur before the Norman Conquest. So far as we can say that there was any regular judicial system in Anglo-Saxon law, it was of a highly archaic type. We find indeed a clear enough distinction between public offences and private wrongs. Liability to a public fine or, in grave cases, corporal or capital punishment, may concur with ' Glanvill, ii. 6. Details on Anglo-Saxon servitude may be found in Kemble Saxons in England, bk. i. c. 8, and Larking, Domesday Book of Kent, note 57. See also Maurer, Kritisohe Uebersohau i. 410; Jastrow, Zur strafreehtlichen Stellung der Sklaven. ' In. 9. The wording 'wraoe d6' is vague: doubtless it means taking the other party's cattle. ' E.g. Clovelly Court, N. Devon. Cp. Eentalia et Custumaria, Somerset Eeoord Society, 1891, Glossary, s. v, Gmia. It is also common in Gloucester- shire, Cheshire and Kent. CH. I.] Anglo-Saxon Law. 15 liability to make redress to a person wronged or slain, or to his kindred, or to incur his feud in default. But neither these ideas nor their appropriate terms are confused at any time. On the other hand there is no perceptible difference of au- thorities or procedure in civil and criminal matters until, within a century before the Conquest, we find certain of the graver public offences reserved in a special manner for the king's jurisdiction. The staple matter of judicial proceedings was of a rude and simple kind. In so far as we can trust the written laws, the only topics of general importance were manslaying, wounding, and cattle-stealing. So frequent was the last-named practice that it was by no means easy for a man who was minded to buy cattle honestly to be sure that he was not buying stolen beasts, and the Anglo-Saxon dooms are full of elaborate pre- cautions on this head, to which we shall return presently. As to procedure, the forms were sometimes complicated, Procedure, always stiff and unbending. Mistakes in form were probably fatal at every stage. Trial of questions of fact, in anything like the modern sense, was unknown. Archaic rules of evidence make no attempt to apply any measure of probability to individual cases^ Oath was the primary mode of proof, an oath going not to the truth of specific fact, but to the justice of the claim or defence as a whole. The number of persons required to swear varied according to the nature of the case and the rank of the persons concerned. Inasmuch as the oath, if duly made, was conclusive, what we now call the burden of proof was rather a benefit than otherwise under ancient Germanic procedure. The process of clearing oneself by the full performance of the oath which the law required in the particular case is that which later medieval authorities call 'making one's law,' facere legem. It remained possible, in certain cases, down to quite modern times. An accused person who failed in his oath, by not having the proper number of oath-helpers' prepared to swear, or who was already disqualified from clearing himself by oath, had to go to one of the forms of ordeal in the later Anglo-Saxon period. Down to the ninth century the opposition of the Church appears to have kept 1 Brunner, Beohtsgesohiohte, ii. 375. ■ 2 The usual modem term 'compurgator' was borrowed by legal antiquaries from ecclesiastical sources in much later times. 16 Anglo-Saxon Law. [bk. I. Union of temporal and spiritual jurisdic- tion. ordeal outside the recognised law\ Trial by combat was to all appearance as unknown to the Anglo-Saxon procedure as to that of the Salic law', though it was formally sanctioned on the continent by Gundobald, king of the Burgundians, at the very beginning of the sixth century ^ An apparently genuine ordi- nance of William the Conqueror enables Englishmen to make use of trial by battle in their lawsuits with Normans, but expressly allows them to decline it. This is strong to prove that it was not an English institution in any form*. Permitted or justified private war, of which we do find considerable traces in England ^ is quite a different matter. The Anglo-Norman judicial combat belongs to a perfectly regular and regulated course of proceeding, is as strictly controlled as any other part of it, and has no less strictly defined legal consequences. A ' fore-oath,' distinct from the definitive oath of proof, was required of the party commencing a suit, unless the fact com- plained of were manifest ; thus a fore-oath was needless if a man sued for wounding and showed the wound to the court. A defendant who was of evil repute might be driven to clear himself by the fore-oath alone '. As regards the constitution of Anglo-Saxon courts, our direct evidence is of the scantiest. We have to supplement it with indications derived from the Anglo-Norman and even later times. One certain and very well-known peculiarity of the Anglo- Saxon period is that secular and ecclesiastical courts were not separated, and the two jurisdictions were hardly distinguished. ' Edw. & Guth. 9, 'be ord^le and 4'Sum,' is the first mention of ordeal we have in England. It is still more significant that the later formulas (Schmid, App. xvii.) are copied from Frankish sources. See Brunner, Bechtsgeschichte, ii. 402. 2 The appearance of 'crest' (a correct Northern form=Eng. earnest) among the privileges of Waltham Abbey, Cod. Dipl. 813, is probably due to a post- Norman scribe, for our text rests on a very late copy. At all events the charter is only a few years before the Conquest. However, trial by battle may well have been known in the Danelaw throughout the tenth century. ' Lex Burgund. viii. §-2, xlv. Fustel de Coulanges, La Monarchic franque, p. 453 ; G. NeilsoD, Trial by Combat. '' Will. ii. (Willelmes oyninges dsetnysse). " jElf. 42. Sir James Stephen's statement (Hist. Crim. Law, i. 61) that 'trial by battle was only private war under regulations' cannot be accepted. <" Cn. ii. 22, and the newly-printed gloss in Liebermann, Consil. Cnuti, 14 : a triple fore-oath might even send him to the ordeal. CH. I.J Anglo-Saxon Law. 17 The bishop sat in the county court; the church claimed for him a large share in the direction of even secular justice', and the claim was fully allowed by princes who could not be charged with weakness^ Probably the bishop was often the only member of the court who possessed any learning or any systematic training in public affairs. Y^ The most general Anglo-Saxon term for a court or assembly ?'^?. ^^s's , , . . . . . . justice not empowered to do justice is gerndt. In this word is included all ordinary. authority of the kind from the king and his witan' downwards. Folc-gemdt appears to mean any public court whatever, greater or less. The king has judicial functions, but they are very far removed from our modern way of regarding the king as the fountain of justice. His business is not to see justice done in his name in an ordinary course, but to exercise a special and reserved power which a man must not invoke unless he has failed to get his cause heard in the jurisdiction of his own hundred ^ Such failure of justice might happen not from ill- will or corruption on the part of any public officer, but from a powerful lord protecting offenders who were his men*. In such cases the king might be invoked to put forth his power. It is obvious that the process was barely distinguishable from that of combating an open rebellion". After the Norman Conquest, as time went on, the king's justice became organised and regular, and superseded nearly all the functions of the ancient county and hundred courts. But the king's power to do justice of an extraordinary kind was far from being abandoned. The great constructive work of Henry II. and Edward I. made it less important for a time. In the fifteenth and sixteenth centuries it showed its vitality in the hands of the king's chancellors, and became the root of the modem system of equity''. Down to our own time that system preserved the marks of its origin in the peculiar character of the compulsion exercised by courts of equitable jurisdiction. Disobedience to their process 'and decrees was a direct and special contempt of the king's authority, and a ' commission of 1 Bdg. iii. 5 (third quarter of tenth century); 'Institutes of PoUty in Thorpe, Ancient Laws, ii. 313. " Writ of Onut from York Gospel Book, Stubbs, Sel. Ch. 75. " ' Witenagem6t ' does not appear to have been an official term. * iEdg. iii. 2, repeated Cnut, ii. 17. » .Ethelst. ii. 3. ' Cf. .Sithelst. vi. (Jud. Civ. Lund.) 8 §§ 2, 3. ' Blaokst. Comm. iii. 51. P. M, 2 18 Anglo-Saxon Laiv. [bk. i. rebellion ' might issue against a defendant making default in a chancery suit, however widely remote its subject-matter might be from the public affairs of the kingdom '. Jurisdic- We have many examples, notwithstanding the repeated Witan. ordinances forbidding men to seek the king's justice except after failure to obtain right elsewhere, of the witan exercising an ori^nal jurisdiction in matters of disputed claims to book- land". This may be explained in more than one way. Book- land was (as we shall see) a special form of property which only the king and his witan could create. Moreover, one or both parties to such suits were often bishops or the heads of great houses of religion, and thus the cause might be regarded as an ecclesiastical matter fit to be dealt with by a synod rather than by temporal authority, both parties doubtless consenting to the jurisdiction. The charters that inform us of what was done, especially in 803 and 825 at the synods or synodal councils of Clovesho, that ' famous place ' whose situation is now matter of mere con- jecture^ leave no doubt that on these occasions, at least, the same assembly which is called a synod also acted as the witan. ' The secular and spiritual functions of these great meetings might have been discriminated by lay members not taking part in the ecclesiastical business ; but it is by no means certain that they were*. In any case it is highly probable that the prohibitions above cited were never meant to apply to the great men of the kingdom, or royal foundations, or the king's immediate 'followers. huSr'ed""^ ^^^ ordinary Anglo-Saxon courts of public justice were the courts. county court and the hundred court, of which the county court was appointed to be held twice a year, the hundred every four weeks'. Poor and rich men alike were entitled to have right done to them, though the need of emphasising this elementary pomt of law in the third quarter of the tenth century suggests that the fact was often otherwise ^ Thus the hundred court was the judicial unit, so to speak, ^ Blackst. Coram, iii. 444. ^ Cases collected in Essays in Anglo-Saxon Law, ad fin ^ Earle, Land Charters, 453. ^ of. Kemble, Saxons in Eng. ii. 247, 249 Bdg. 1. 1 (the ascription of this ordinance to Edgar is oonicctural h„i ^^^rt^ '°''^'' '-'" ^"^"'^^ ^^'^ LieLr.an:^:21S " Edg. iii. 1. CH. I.] Anglo-Saxon Law. 19 for ordinary aiFairs. We have no evidence that any lesser public court existed. It is probable enough that some sort of township meeting was held for the regulation of the common- field husbandry which prevailed throughout England : and the total absence of any written record of such meetings, or (so far as we know) allusion to them, hardly makes the fact less probable. But we have no ground whatever for ^concluding that the township-moot, if that were its name, had any properly judicial functions. And we must remember that the territorial extent of the hundred may have been smaller, and that of the township larger, than in later times ^ ' Mark-moot,' which has been supposed to be the name of a primary court, appears rather to mean a court held on the marches of adjacent counties or hundreds, or perhaps on the boundary dyke itself ^ The ordinances which tell us of the times of meeting ap- pointed for the county and hundred courts tell us nothing whatever of their procedure. It may be taken as certain, how- ever, that they had no settled or efficient mode of compelling the attendance of parties or enforcing their orders. A man who refused to do justice to others according to the law could only be put out of the protection of the law, save in the cases which were grave enough to call for a special expedition against him. Outlawry, developed in the Danish period as a definite part of English legal process, remained such until our own time. All this is thoroughly characteristic of archaic legal systems in general. Nothing in it is peculiarly English, not much is peculiarly Germanic. Thus far we have spoken only of public 'jurisdiction. But Pnyate we know that after the Norman Conquest England was covered tion. with the private jurisdictions of lords of various degrees, from the king himself downwards, holding courts on their lands at which their tenants were entitled to seek justice in their own local affairs, and bound to attend that justice might be done to their fellows. ' Court baron ' is the most usual modern techni- cal name for a court of this kind. Further, we know that private jurisdiction existed on the continent much earlier, and that it existed in England in the early part of the eleventh century. It is a question not free from doubt whether the 1 F. W. Maitland, ' The Surnames of English Villages,' Archaeol. Eev. iv. 233, 239. 2 Cf. Schmid, Ges. d. A.-S., Glossary, s. v. meare. 2—2 20 Anglo-Saxon Law. [bk. i. institution was imported from the continent not long before that time, or on the contrary it had been known in England a good while before, perhaps as early as the date of our earliest Anglo-Saxon laws and charters, notwithstanding that it is not expressly and directly mentioned in documents of the earlier period. There is no doubt that the words ' sac and soc,' whatever their exact individual meaning may be, import, when used together, the power of exercising private jurisdiction, and the right to take and enjoy the profits thereof Now the first authentic appearance of these words in a formal document is in or very soon after the year 1020, in a writ issued by Cnut to coniirm the new archbishop ^thelnoth in the temporalities of the see of Canterbury^ where the privilege of ' sac and soca ' among others is expressly granted. And this might lead to the inference that private jurisdiction did not exist in England, or existed only as an abuse and encroachment of powerful men, 'iniuste et per vim,' in the language of the Anglo-Norman time, before the year 1000 or thereabouts. But we must observe that this writ of Cnut does not by any means purport or appear, on the face of it, to be doing anything new or unusual. Nor was there any reason at that time why Cnut should extend the privileges of the see of Canterbury at the expense of the crown. If there were anything new in the form of the grant, it seems at least as likely that the king, though neither willing nor able to interfere with the privileges of the church as he found them, took the occasion to represent them as expressly derived from his own authority. We have already pointed out that the notion of all jurisdiction and public justice proceeding from the king does not belong to the Anglo-Saxon period. And it may well be thought that the introduction of formal words of jurisdiction in the documents of the eleventh century marks, not the encroachment of lords on the office of the popular courts, but the increasing power of the king, and the determination to have his supremacy at least nominally recognised. Thus viewed, it would be a step in the direction of the far more thorough measures afterwards carried out by 1 Barle, Land Charters, p. 232 ; first published by Kemble in the Archaeo- logical Journal, 1857. Its terms are closely followed by a writ of Edward the Confessor, supposed by Mr Adams (Essays in Anglo-Saxon Law, p. 47) to be the first of its kind, and Norman in form. CH. I.] Anglo-Saxon Law. 21 Edward I. Positive proof is not forthcoming, but the language of earlier charters is at least as compatible with this opinion as with the contrary one. In all feudal jurisprudence and in all medieval arguments, whether in the municipal courts of Euro- pean states or between sovereign princes themselves, which proceeded on feudalist assumptions, it was an unquestioned principle that jurisdiction was the natural fruit and incident of the privileges summed up as 'immunities.' And it is now almost a commonplace of history that the Norman Conquest, in imposing feudalism on England, did but accelerate a process that was already begun. It is difficult to suppose that private jurisdiction, the most essential point of feudalism, was among the latest to be adopted. We shall return to this question at a later stage. Proceeding to the usual subject-matters of Anglo-Saxon Subject- jurisdiction, we find what may be called the usual archaic Anglo- features. The only substantive rules that are at all fully set ^gg"" ''"^' forth have to do with offences and wrongs, mostly those which are of a violent kind, and with theft, mostly cattle-lifting. Except so far as it is involved in the law of theft, the law of property is almost entirely left in the region of unwritten custom and local usage. The law of contract is rudimentary, so rudimentary as to be barely distinguishable from ■ the law of property. In fact people who have no system of credit and very little foreign trade, and who do nearly all their business in person and by word of mouth with neighbours whom they know, have not much occasion for a law of contract. It is not our purpose to consider in this place the relation of Anglo-Saxon customs and ordinances to those of Germanic nations on the continent; to inquire, for example, why the Salic or the Lombard laws should present striking resemblances even in detail to the laws of Alfred or Cnut, but provide with equal or greater minuteness for other similar cases on which the Anglo- Saxon aufthorities are silent. In the period of antiquarian compilation which set in after the Norman Conquest, and of which the so-called laws of Henry I. are the most conspicuous product, we see not only imitation of the continental collections, but sometimes express reference to their rules \ But this kind ^ Hen. 0. 87 § 10, 89 § 1, secundum legem Saligam; 90 § 4, secwndum legem tlibuariormn solvatur. 22 Anglo-Saxon Law. [bk. i. of reference, at the hands of a compiler who could also quote the Theodosian code^ throws no light whatever on the possi- bilities of continental influence at an earlier time. It is highly probable that Alfred and his successors had learned persons about them who were more or less acquainted with Frankish legislation if not with that of remoter kingdoms. But it suffices to know that, in its general features, Anglo-Saxon law is not only archaic, but offers an especially pure type of Germanic archaism. We are therefore warranted in supposing, where English authority fails, that the English usages of the Anglo-Saxon period were generally like the earliest correspond- ing ones of which evidence can be found on the continent. The king's Preservation of the peace and punishment of offences were peace. dealt with, in England as elsewhere, partly under the customary jurisdiction of the local courts, partly by the special authority of the king. In England that authority gradually superseded all others. All criminal offences have long been said to be committed against the king's peace ; and the phrase, along with ' the king's highway,' has passed into common use as a kind of ornament of speech, without any clear sense of its historical meaning. The two phrases are, indeed, intimately connected ; they come from the time when the king's protection was not universal but particular, when the king's peace was not for all men or all places, and the king's highway was in a special manner protected by it. Breach of the king's peace was an act of personal disobedience, and a much graver matter than an ordinary breach of public order; it made the wrong-doer the king's enemy. The notion of the king's peace appears to have had two distinct origins. These were, first, the special sanctity of the king's house, which may be regarded as differing only in degree from that which Germanic usage attached everywhere to the homestead of a free man; and, secondly, the special protection of the king's attendants and servants, and other persons whom he thought fit to place on the same footing. In the later Anglo-Saxon period the king's particular protection is called 'griS' as distinct from the more general word 'friS.' Although the proper name is of comparatively recent introduc- 1 Hen. 0. 33 § 4, de lih-o Theodosiame legis, iniusU victus infra tres menses reparet causavi. The quotation is really from an epitome of the Lex Bomana Visigothorum. CH. I.J Anglo-Saxon LoiW. 23 tion^ and of Scandinavian extraction, the thing seems to answer to the Frankish sermo or verbum regis, which is as old as the Salic law^. The rapid extension of the king's peace till it becomes, after the Norman Conquest, the normal and general safeguard of public order, seems peculiarly English'. On the continent the king appears to have been recognised as protector of the general peace, besides having power to grant special protection or peace of a higher order, from a much earlier time*. It is not clear whether there was any fixed name for the general peace which was protected only by the hundred court and the ealdorman. Very possibly the medieval usage by which an inferior court was said to be in the peace of the lord who held the court* may go back in some form to the earliest time when there were any set forms of justice ; and there is some evidence that in the early part of the tenth century men spoke of the peace of the witan^ We have not found English authority for any such term as folkpeace, which has sometimes been used in imitation of German writers. No light is thrown on early Anglo-Saxon ideas or methods of keeping the peace by the provision that every man shall be in a hundred and tithing. For it first appears in this definite form in the laws of Cnut', and it has every appearance of being a deliberate piece of legislation. This, however, is a matter of administrative mechanism rather than of the law itself. ' See A. S. Ohron. sub ann. 1002. 2 Fustel de Coulanges, Origines du systtoe f^odal, p. 300 sqq. Lex Sal. xiii. 6 ; Ivi. 2 ; Capit. v. (edict of Chilperic) 9. To be out of the king's protection is to be extra sermonem suum, foras nostra sermone. In xiv. 4, praeceptum appears to be the king's written protection or Ucenoe. The phrase in Ed. Conf. 6 § 1 (cf. Brunner, Bechtsgesohichte, ii. 42), ore suo utlagabit eum rex, or, as Eoger of Hoveden gives it, utlagabit eum rex verba oris sui, looks more like the confused imitation of an archaizing compiler than a genuine parallel. 3 For details see F. Pollock, Oxford Lectures, 1890, ' The King's Peace,' op. cit. 65. i Brunner, ii. §§ 65, 66, who calls attention (p. 42) to the relative weakness of the crown in England. 5 See 13th and 14th cent, precedents for holding a court in 'The Court Baron' (Selden Soc. ed. F. W. Maitland, 1891). * Edw. ii. 1. Schmid, Gloss, s. v. Friede, considers the general peace to have been the king's peace in some sense. This lacks authority, but is nearer the truth than talking of Volksfriede : it seems accepted as regards the continent: Brunner, op. cit. ' On. u. 20. 24 Anglo-Saxon Law. [bk. i. Feud and In Anglo-Saxon as well as in other Germanic laws we find atonement, ^j^^^ ^j^^ -^^^^ ^^ wrong to a person or his kindred is still primary, and that of offence against the common weal secondary, even in the gravest cases. Only by degrees did the modern principles prevail, that the members of the commonwealth must be con- tent with the remedies afforded them by law, and must not seek private vengeance, and that on the other hand public offences cannot be remitted or compounded by private bargain. Personal injury is in the first place a cause of feud, of private war between the kindreds of the wrong-doer and of the person wronged. This must be carefully distinguished from a right of specific retaliation, of which there are no traces in Germanic law\ But the feud may be appeased by the accept- ance of a composition. Some kind of arbitration was probably resorted to from a very early time to fix the amount. The next stage is a scale of compensation fixed by custom or enactment for death or minor injuries, which may be graduated according to the rank of the person injured. Such a scale may well exist for a time without any positive duty of the kindred to accept the composition if offered. It may serve only the purpose of saving disputes as to the amount proper to be paid where the parties are disposed to make peace. But this naturally leads to the kindred being first expected by public opinion and then required by public authority not to pursue the feud if the proper composition is forthcoming, except in a few extreme cases which also finally disappear. At the same time, the wrong done to an individual extends beyond his own family; it is a wrong to the community of which he is a member ; and thus the wrong-doer may be regarded as a public enemy. Such expressions as 'outlaw against all the people' in the Anglo-Saxon laws preserve this point of view^". The conception of an offence done to the State in its corporate person, or (as in our own system) as represented by the king, is of later growth. Absolute chronology has very little to do with the stage of growth or decay in which archaic institutions, and this one in particular, may be found in different countries and times. The Homeric poems show us the blood-feud in full force in cases of > Par. 19 of the introduction to Alfred's laws, copied from the book of Exodus, is of course no exception. " Cp. Grettis Saga, c'. 79. CH. I.] Anglo-Saxon Law. 25 manslaying (there is little or nothing about wounding), tempered by ransom or composition which appears to be settled by agreement or arbitration in each case. In the classical period of Greek history this has wholly disappeared. But in Iceland, as late as the time of the Norman Conquest of England, we find a state of society which takes us back to Homer. Manslayings and blood-feuds are constant, and the semi-judicial arbitration of wise men, though often invoked, is but imperfectly successful in staying breaches of the peace and reconciling adversaries. There is not even any recognised scale of compositions. In the Germanic laws both of England and of the mainland we find a much more settled rule some centuries earlier. Full scales of composition are established. A freeman's life has a regular value set upon it, called wergild, literally 'man's price' or ' man-payment '^ or ofbener in English documents ' wer' simply. For injuries to the person short of death there is an elaborate tariff; the modern practice of assessing damages, though familiar to Roman law in the later republican period, is un- known to early Germanic law, nor were there in Germanic procedure any means of applying the idea if it had existed. Composition must generally be accepted if offered ; private war is lawful only when the adversary obstinately refuses to do right. In that case indeed, as we learn from a well-known ordinance of Alfred ^ the power of the ealdorman, and of the king at need, may be called in if the plaintiff is not strong enough by himself; in other words the contumacious denier of justice may be dealt with as an enemy of the commonwealth. At a somewhat later time we find the acceptance and payment of compositions enforced by putting the obligation between the parties under the special sanction of the king's peace'. But it was at least theoretically possible, down to the middle of the tenth century, for a manslayer to elect to bear the feud of the kindred*. His own kindred, however, might avoid any share in the feud by disclaiming him ; any of them who maintained him after this, as well as any of the avenging kinsfolk who meddled 1 Grimm, D. E. A. 651. Brunner, D. B. G. i. 86. An archaic synonym U6d occurs iEthelb. 22, 23, cp. Grimm, 652. => ^If. 42. 3 Edm. II. 7, and ' Be Wergilds' (Schmid, App. vii.) § 4. < Edm. II. 1. jEthelr. II. 6 § 1, suggests but hardly proves a change, leaving the option with the slain man's kindred alone, though such is held to have been the settled rule on the continent : Brunner, D. B. G. i. 163. 26 Anglo-Saxon Law. [bk. i. with any but the actual wrong-doer, was deemed a foe to the king (the strongest form of expressing outlawry) and forfeited all his property. Wer.wlte, We find the public and private aspects of injurious acts '"^'- pretty clearly distinguished by the Anglo-Saxon terms. Wer, as we have said, is the value set on a man's life, increasing with his rank. For many purposes it could be a burden as well as a benefit ; the amount of a man's own wer was often the measure of the fine to be paid for his offences against public order. Wite is the usual word for a penal fine payable to the king or to some other public authority. B6t (the modern German Busse) is a more general word, including compensation of any kind. Some of the gravest offences, especially against the king and his peace, are said to be botleds, 'bootless'; that is, the oifender is not entitled to redeem himself at all, and is at the king's mercy. The distinction between wer and wite must be very ancient ; it corresponds to what is told us of German custom by Tacitus'. "^ The only punishments, in the proper sense, generally appli- cable to freemen, were money fines, and death in the extreme cases where redemption with a money fine was not allowed. Mutilation and other corporal punishments are prescribed (but with the alternative of redemption by a heavy fine) for false accusers, for habitual criminals, and for persons of evil repute who have failed in the ordeal ^ Imprisonment occurs in the Anglo-Saxon laws only as a means of temporary security. Slaves were, of course, liable to capital and other corporal punishment, and generally without redemption. The details have no material bearing on the general history of the law, and may be left to students of semi- barbarous manners. Outlawry, at first a declaration of war by the commonwealth against an offending member, became a regular means of compelling submission to the authority of the courts, as in form it continued so to be down to modern times'. In criminal proceedings, however, it was used in, or very soon 1 Tac. Germ. c. 12. B6t is closely connected with 'better'; the idea is 'making good.' 2 In. 18 ; ^If. 32 ; Cn. ii. 16, 30. The ' folk-leasing' of Alfred's law must be habitual false accusation in the folk-moot, not private slander. 3 It was formally abolished in ciyil proceedings only in 1879, 42 & 43 Viot. !>. 59, s. 3. In criminal matters it is still possible, see the Statute Law Bevision Act, 1888, s. 1. But it has not been in use for a generation or more. CH. I.J Anglo-Saxon Law. 27 after, Alfred's time, that is, about the end of the ninth century, as a substantive penalty for violent resistance to a legal process or persistent contempt of courts Before the Conquest, out- lawry involved not only forfeiture of goods to the king, but liability to be killed with impunity. It was no offence to the king to kill his enemy, and the kindred might not claim the wergiW. It was thought, indeed, down to the latter part of the sixteenth century, that the same reason applied to persons under the penalties appointed by the statutes of praemunire, which expressly included being put out of the king's pro- tection'. It would appear that great difficulty was found both in Difficulties obtaining specific evidence of offences, and in compelling accused ung s™b-'' and suspected persons to submit themselves to justice, and pay ™urJg° *° their fines if convicted. This may serve to explain the severe provisions of the later Anglo-Saxon period against a kind of persons described as ' frequently accused,' ' of no credit*.' One who had been several times charged (with theft, it seems we must understand), and kept away from three courts running, might be pursued and arrested as a thief, and treated as an outlaw if he failed to give security to answer his accusers^. A man of evil repute is already half condemned, and if he evades justice it is all but conclusive proof of guilt. In communities where an honest man's neighbours knew pretty well what he was doing every day and most of the day, this probably did not work much injustice. And English criminal procedure still held to this point of view two centuries after the Conquest. It may be said to linger even nowadays in the theoretical power of grand juries to present offences of their own knowledge. Several passages, and those from a period of comparatively Mainten- settled government, show that great men, whose followers had offenders committed crimes, often harboured and maintained them in ^e^^* open defiance of common rights If it was needful for ^Ethelstan, ' E. & G. 6 § 6, op. Edg. i. 3, .lithelr. i. 1 § 9, and many later passages. 2 E. & G. 6 § 7 : the outlaw, if slain, shall lie mgylde, the exact equivalent of the Homeric v-^iroivos. » Co. Litt. 130 a ; Blaokst. Comm. iv. 118 ; 5 Bliz. u. 1. * Eng. tiht-bysig, folce ungetr^we, Lat. incredibilie. The idea is the con- tradiction of getrpwe = homo prohus or legalis. Folce or eallum folce signifies merely notoriety : we cannot find in the text, as some writers have done, a doctrine of fealty to the people as a quasi-sovereign. 6 Edg. iii. 7 ; On. ii. 33 ; cp. ib. 22. 6 jEthelst. ii. 3, cp. 17, iv. 8. Cp. too vi. 8, as to over-powerful clans. 28 Anglo-Saxon Law. [bk. i. the victor of Brunanburh, to make ordinances against lawless- ness of this kind, we can only think that weaker princes left it without remedy, not because the evil was less in their days, but because they had no power to amend it. The same thing was common enough in the Scottish highlands as late as the early part of the eighteenth century'. Why no Putting together these indications of a feeble executive battle.^ power, we are apt to think that the absence of trial by battle from Anglo-Saxon procedure can best be explained by the persistence of extra-judicial fighting. Gundobald of Burgundy, and other Germanic rulers after him, tempted their subjects into court by a kind of compromise. It is hardly possible to suppose that their ostensible reason of avoiding perjury was the real one. Rather it was understood, though it could not be officially expressed, that Burgundian and Lombard" freemen would submit to being forbidden to fight out of court on the terms of being allowed to fight under legal sanction, thus combining the physical joy of battle with the intellectual luxury of strictly formal procedure. It seems plausible to suppose that the mechanism of Anglo-Saxon government was not commonly strong enough to accomplish even this. Special Offences specially dealt with in various parts of the Anglo- treason. Saxon laws are treason, homicide, wounding and assault (which, however, if committed by free men, are more wrongs than crimes), and theft. Treason to one's lord, especially to the king, is a capital crime. And the essence of the crime already consists in compassing or imagining the king's death, to use the later language of Edward III.'s Parliament'- The like appears in other Germanic documents*. It seems probable, however, that this does not represent any original Germanic tradition, but is borrowed from the Roman law of maiestas, of which one main head was plotting against the lives of the chief magis- 1 Of. Baillie Nicol Jarrie on the state of the Highlands, Bob Boy, ii. oh. 12 (original edition). 2 Liiitprand, a.d. 731, openly regretted that trial by combat could not be abolished (Liutpr. a. xix. c. 118 : incerti sumus de indicia del, et multoa audivimus per pugnam sine iustitia causam suam perdere : sed propter consuitu- tinem gentis nostrae langobardorwm legem ipsam uetare non possumus). Avitus, archbishop of Vienne (t 525) protested against Oundobald's ordinance. 3 MU. i. * Ed. Both. 1 (L. Langob.) contra animam regis cogitaverit aut consiliaverit; L. Sax. iii. 1, de morte consiliatm fuerit ; so L. Baiuw. ii. 1, L. Alam. xxiv. ; mortem diicis consiliatus fuerit ; cp. Brunner, D. B. G. ii. 688. CH. I.] Anglo-Saxon Law. 29 trates'. No part of the Roman law was more likely to be imitated by the conquerors of Roman territory and provinces ; and when an idea first appears in England in Alfred's time, there is no difficulty whatever in supposing it imported from the continent. Not that rulers exercising undefined powers in a rude state of society needed the Lex Julia to teach them the importance of putting down conspiracies at the earliest possible stage. We are now speaking of the formal enunciation of the rule. On the other hand the close association of treason against the king with treason against one's personal lord who is not the king is eminently Germanic. This was preserved in the ' petty treas(m ' of medieval and modern criminal law. The crime of treason was unatonable '■', and the charge had to be repelled by an oath adequate in number of oath-helpers, and perhaps in solemnity, to the wergild of the king or other lord as the case might be. If the accused could not clear himself by oath, and was driven to ordeal, he had to submit to the threefold ordeaP, that is, the hot iron was of three pounds' weight instead of one pound, or the arm had to be plunged elbow-deep instead of wrist-deep into the boiling water-*. Homicide appears in the Anglo-Saxon dooms as a matter Homicide, for composition in the ordinary case of slaying in open quarrel. There are additional public penalties in aggravated cases, as where a man is slain in the king's presence or otherwise in breach of the king's peace. And a special application of the 1 The following words no doubt substantially represent the text of the lex Julia: Cuiusve opera eonsilio dolo vialo consilium initum erit quo quis magis- tratus populi Romani qmve imperium potestatemve habeat oceidatur. D. 48. 4. ad I. luliam maiestatis, 1 § 1. The consiliaverit, comiliatus fuerit, of the Germanic laws can hardly be an accidental resemblance. In the title of the Saxon law the term laesa dominatione is used. In Glanv. xiv. l=Eeg. Maj. iv. 1, the principal terms are machinatum fuisse vel aliquid fecisse, but consilium dedisse is there too. 2 Cn. ii. 64 ; Hen. 12. 3 iElf. 4 ; iEthelst. ii. 4 ; Mthek. v. 30, vi. 37 ; Cn. ii. 37. This last passage, in its literal terms, would not allow purgation by oath-helpers at all, but send the accused straight to the ordeal. So great a change of the previous law can scarcely have been intended. jEthelred's ordinance, vi. 37, requires the ' deepest oath,' whatever that was. Cp. Godwine's oath cum totius fere Angliae princip- ibus et ministrii dignioribus, Flor. Wigorn. s. a. 1040. Possibly Danish law may have been stricter than English. We hear of an oath of 48 thanes against the charge of robbing a corpse : Be walredfe, Schmid, App. xv. in a document apparently of Danish extraction, see Brunner, D. E. G. ii. 684. The Lex Ribuaria requires in some special oases an oath of 36 or even 72 men. * Kdg. i. 9 ; Ddm be hdtan isene and wcetre, Schm. App. xvi. 32 Anglo-Saxon Law. [bk. i. picion attaching to every one possibly concerned, an armourer was bound to answer to the owner at all hazards (unless it were agreed to the contrary) for the safe custody and return of weapons entrusted to him\ ^^*i" The extreme difficulty of getting any proof of intention, or responsi- of its absence, in archaic procedure is, perhaps, the best ex- accidents, planation of rules of this kind. At all events, they not only are characteristic of early German law, but they have left their mark on the developed common law to a notable extent. In modern times the principle of general responsibility for pure accidents arising from one's lawful act has been disallowed in the United States, and more lately in England. But, as regards the duty of safely keeping in cattle, and in the case of persons collecting or dealing with things deemed of a specially dan- gerous kind, the old Germanic law is still the law of this land and of the greater part of North America. Fire, which English law has regarded for several centuries as a specially dangerous thing in this sense, and which is dealt with in some of the early Germanic dooms, is not mentioned for this purpose in our documents^ Liability for damage done by dogs is on the other hand rather elaborately dealt with by a scale of compensation increasiag after the first bite'. There are traces of the idea which underlay the Roman noxal actions, and which crops up in the medieval rule of deodand, that where a man is killed by accident, the immediate cause of death, be it animate or inanimate, is to be handed over to the avenger of blood as a guilty thing. When men were at work together in a forest, and by misadventure one let a tree fall oq another, which killed him, the tree belonged to the dead man's kinsfolk if they took it away within thirty days^ This kind of accident is still quite well known in the forest countries of Europe, as witness the rude memorial pic- tures, entreating the passer's prayers, that may be seen in any Tyrolese valley. Also a man whose beast wounded another might surrender the beast as an alternative for money com- pensation'. 1 M\i. 19 § 3; Hen. 87 § 3. A similar rule as to arms given in pledge stiU has the force of law in Montenegro : Code gtoeral.des biens (tr. Dareste) Paris 1892, art. 176. 2 M\i. 12 seems to relate only to wilful trespass in woods OH. i.j Anglo-Saxon Law. 33 Theft, especially of cattle and horses, appears to have been Tiieft. by far the commonest and most troublesome of offences. There is a solitary and obscure reference to ' stolen flesh ' in Ine 1 7. Perhaps this is to meet the case of a thief driving cattle a certain distance and then slaughtering them, and hiding the flesh apart from the hides and horns, which would be more easily identified. If we are surprised by the severity with which our ancestors treated theft, we have only to look at the prevalence of horse-stealing in the less settled parts of the western American states and territories in our own time, and the revival of archaic methods for its abatement. Collusion with thieves on the part of seemingly honest folk appears to have been thought quite possible : Cnut required every man above twelve years to swear that he would be neither a thief nor an accomplice with thieves', and special penalties for letting a thief escape, or failing to raise, or follow, the hue and cry, point in the same direction". Slavery was a recognised penalty when the thief was unable to make restitution. This may be regarded as the working out of a debt rather than a punish- ment in the modern sense. But moreover the offender's whole family might lose their freedom as accomplices. The harshness of this rule was somewhat relaxed if the thief's wife could clear herself by oatli from having had any part in stolen cattle which had been found in his house ^ But as late as the early part of the eleventh century, Wulfstan's homily* complains that 'cradle- children ' are unjustly involved in the slavery of their parents. All this, however, belongs to social antiquities rather than to legal history. The common law of theft is wholly post-Norman. Nor is 'it needful to dwell on the Anglo-Saxon treatment of special and aggravated forms of theft, such as sacrilege ^ Steal- ing on Sunday, in Lent, and on Christmas, Easter, or Ascension Day, was punishable with a double fine by the old Wessex law°. In a modern system of law we expect a large proportion of Property, the whole to be concerned with the rules of acquiring, holding, and transferring property. We look for distinctions between land and movables, between sale and gift, between the acts 1 Cn. ii. 21. " lb. 29. " Ine 7, 57. ■* Ed. Napier, Berlin, 1883, p. 158. = As to robbing corpses, Schmid, App. xv. Be Walredfe. « MM. 5 § 5 ; the principle is reaffirmed, but so vaguely as to suggest that it had become obsolete in practice, in Cn. ii. 38. P. M. 3 34 Anglo-Saxon Law. [bk. i. completed among living persons and dispositions to take effect by way of inheritance. If the word property be extended to include rights created by contract, we may say that we con- template under this head by far the greater and weightier part of the whole body of legal rules affecting citizens in their private relations. But if we came with such expectations to examine laws and customs so archaic as the Anglo-Saxon, we should be singularly disappointed. Here the law of property is customary and unwritten, and no definite statement of it is to be found an3rwhere, while a law of contract can hardly be said to exist, and, so far as it does exist, is an insignifi- cant appurtenance to the law of property. But we must re- member that even Hale and Blackstone, long after that view had ceased to be appropriate, regarded contract only as a means of acquiring ownership or possession. Yet more than this; it is hardly correct to say that Anglo-Saxon customs or any Germanic customs, deal with ownership at all. What modem lawyers call ownership or property, the dominium of the Roman system, is not recognised in early Germanic ideas. Possession, not ownership, is the leading conception ; it is possession that has to be defended or recovered, and to pos- sess without dispute, or by judicial award after a dispute real or feigned, is the only sure foundation of title and end of strife. A right to possess, distinct from actual possession, must be admitted if there is any rule of judicial redress at all; but it is only through the conception of that specific right that owner- ship finds any place in pure Germanic law. Those who have studied the modern learning of possessory rights and remedies are aware that the common law has never really abandoned this point of view. Sale and Movable property, in Anglo-Saxon law, seems for all prac- contracts. tical purposes to be synonymous with cattle. Not that there was no other valuable property, but arms, jewels, and the like, must with rare exceptions have been in the constant personal custody of the owners or their immediate attendants. Our documents leave us in complete ignorance of whatever rules existed. We may assume that actual delivery was the only known mode of transfer between living persons; that the acceptance of earnest-money and giving of pledges were cus- tomary means of binding a bargain ; and that contracts in writing were not in use. There is no evidence of any regular CH. I.] Anglo-Saxon Law. 35 process of enforcing contracts, but no doubt promises of any special importance were commonly made by oath, with the purpose and result of putting them under the sanction of the Church. There is great reason to believe that everywhere or almost everywhere a religious sanction of promises has preceded iihe secular one\ and that honourable obligation has been more effective than might be supposed in aiding or supplementing the imperfections of legality ^ Apparently the earliest form of civil obligation in German law was the duty of paying wergild. Payment, when it could not be made forthwith, was secured by pledges, who no doubt were originally hostages. Gradually the giving of security sinks into the background, and the deferred duty of payment is transformed into a promise to pay. But our Anglo-Saxon authorities are of the very scantiest. We find the composition of a feud secured by giving pledges and the payments by instalments regulated * ; and in Alfred's laws there is mention of a solemn kind of promise called ' god-borh ' ; if a suit is brought upon it, the plaintiff must make his fore- oath in four churches, and when that has been done, the de- fendant must clear himself in twelve, so that falsehood on either side would involve manifold perjury and contempt of the church and the saints*. Here we seem to have a mixture of secular and ecclesiastical sanctions, rendered all the easier by the bishop constantly being, as we have seen, the chief judicial officer of the shire. But this must have been a very special procedure, and probably confined to persons of high rank. And it is hard to tell what the subject-matter of these solemn under- takings can have been, unless it were marriages of the parties' children and what we now should call family settlements and, perhaps, reconciliation of standing feuds. We may guess, from what little is known of the practice of local courts in the twelfth and thirteenth centuries, that before the Conquest the hundred courts did to some extent do justice in matters of bargain and 1 Muirhead, Private Law of Eome, 149, 163, 227 (origin of Stipulation). 2 The Boman words credere, fides, spondere, involve a whole history of this kind. Pernice, Labeo, i. 409 ; Pacchioni, Actio ex Sponsu, Bologna, 1888 : Ehrenverpfdndung in German formulas as late as 15th cent., see Kohler, Shake- speare Tor dem Forum der Jurisprudenz, 1884, appx. ' Edm. ii. 7, and 'Be Wergilde,' Schm. App. vii. ■* Mlt. 33. Cp. the provisions as to ' briduw' in the laws of Howel (10th cent.) ap. Haddan and Stubbs, Councils, i. 237, 271. 3—2 36 Anglo-Saxon Law. [bk- I- promise in the ordinary affairs of life. But we have no direct information whatever. Claims for Qn the other hand there runs persistently through the stolen . . 1 things: Anglo-Saxon laws a series of ordinances impressing on Duyers warran y. ^^ pottle the need of buying before good witnesses. But this has nothing to do with the validity of the sale between the parties. The sole purpose, judging by the terms and context of these enactments, is to protect the buyer against the sub- sequent claims of any person who might allege that the cattle had been stolen from him. Difficulties of this kind were es- pecially rife when the sale had been made (in the earlier times) in another English kingdom, or up the country. Hloth^r and Eadric laid down the precautions to be observed by a Kentish man buying cattle in London, then a Mercian town'. Evidently great suspicion attached to sales made anywhere out of open market. Some ordinances require the presence of the portreeve or other credible men at sales without the gates; others attempt to prohibit selling altogether except in towns. Afterwards witnesses are required in town and country alike", and in the latest period we find the number of four witnesses specified'. A buyer who neglected to take witness was liable to eviction, if the cattle were claimed as stolen, without even the chance of calling the seller to warrant him, and he might also incur a forfeiture to the lord of the place, and be called on to clear himself by oath of any complicity in the theft. If he had duly taken witness, he still had to produce the seller, or, if the seller could not be found, to establish his own good faith by oath. If the seller appeared, he had in turn to justify his posses- sion, and this process might be carried back to the fourth remove from the ultimate purchaser. These elaborate pro- visions for vouching to warranty (A.-S. te^m)* or the custom on which they were founded, persisted for some time after the Norman Conquest", and are interesting by their analogy to the doctrine of warranty in the law of real property, which after- ' HI. & E. 16. The supposed ' improbability of a Kentish king making a law for purchases made in the Mercian city of London' (Thorpe's note ad loc.) is imaginary. The law applies to a claim made in Kent by a Mercian professing to be the true owner, and it is to be executed wholly in Kent. = Edg. iv. 6; Cn. ii. 24. ' Will. i. 45. * See jEthelr. ii. 9, 'Be teimum,' and Schmid's Glossary s. vv. Kiiu/e, Tedm. Glanv. i. 15-17. CH. I.] Anglo-Saxon Law. 37 wards underwent a far more full and technical development, and remained, long after it had been forgotten in practice, at the foundation of many parts of modern conveyancing. The dooms of Ine contain a curious archaic provision^ for a buyer clearing himself by an oath taken over the stolen property at the seller's grave, in the case of the seller having died since the purchase of the slave, or other thing in dispute. With regard to the tenure of land we have a cousiderable Land bulk of information, derived partly 'from charters and wills, partly from occasional passages in the laws, and partly from other documents, especially the tract known as ' Rectitudines singularum personarum.' One of the present writers has gone into the matter elsewhere^, and we may confine ourselves here to a short statement of what is positively known. Our Anglo-Saxon charters or hoohs are mostly grants of Book-land, considerable portions of land made by kings to bishoprics and religious houses, or to lay nobles. Land so granted was called book-land, and the grant conferred a larger dominion than was known to the popular customary law. During the ninth century and the early part of the tenth the grant usually purports to be with the consent of the witan. Alodium (of which we have no English form) is a regular Latin translation of book-land. There is great reason to believe that a grant of book-land usually made no difference at all to the actual occu- pation of the soil. It was a grant of lordship and revenues, and perhaps of jurisdiction and its profits, The inhabitants rendered their services and dues to new lords, possibly enough to the same bailiff on behalf of the new lord, and things went on otherwise as before. The right of alienating book-land depended on the terms of the original grant. They were large enough to confer powers equivalent to those of a modem tenant in fee simple. Accordingly book-land often could be and was disposed of by will, though it is impossible to say that the land dealt with in extant Anglo-Saxon wills was always book-land. Lords of book-land might and sometimes did create smaller holdings of the same kind by making grants to depend- ants. It is important to remember that book-land was a clerkly and exotic institution, and that grants of it owe their existence 1 Ine 53. 2 F. Pollock, The Land Laws, 2nd ed. Lend. 1887, chap. ii. and note B ; and Bee Addendum published with a re-issue of the book, 1893. tenures : Iffin-land. 38 Anglo-Saxon Law. [bk. i. directly or indirectly to royal favour, and can throw no light, save incidentally, on the old customary rules of land-holding. Inferior The actual tillers of the ground were mostly dependent on a lord to whom they owed rents and services substantially like those of which we have ample and detailed evidence in post-Norman documents. A large proportion of them were personally free men^ ; the homesteads were several, and every free man was answerable for his own fenced There is no doubt that common-field agriculture was general if not universal"; and probably the scheme of distribution and the normal amount of holdings was very like that which we find after the Conquest. Free men sometimes held considerable estates under a lord, but our authorities are too scanty to enable us to say on what terms*. In the later Anglo-Saxon period, land held of a superior, whether much or little, is called ls^.n-land. It is not clear whether this term extended to customary tenures (those for example which would result from a grant of book-land as between the new lord and the occupiers) or was limited to interests created by an express agreement. In the latter case it may be compared with the Gallo-Frankish precarium, from which indeed it was perhaps derived ^ Folk-land. Folk-land is a term which occurs only in a few documents, and then without any decisive explanation. In the most authori- tative of these, a law of Edward the Elder, it is contrasted with book-land as if it included all land that was not book-land. Spelman, so reading the passage, defined folk-land as land held by common, that is customary law, without written title. On this view an Englishman who was asked 'What do you mean by folk-land ?' would have answered ' Land held by folk-right.' In 1830 John Allen put forth another view which prevailed for two generations. He said* that ' folk-land, as the word imports, was the land of the folk or people. It was the property of the community.' The proposed analogy to the Latin ager publicus was accepted as confidently as it was proposed, and with ' Ins 3 § 2; Mlt 43; Eect. S. P. 3. 2 Ine 40. " Ine 42 is a good illustratiou, though by itself not conclusive. -' Ine 63-67. We assume that the hide here spoken of is not materially different from the normal hide of the Domesday period, i.e. 120 acres. Perhaps these passages have to do with the settlement of a newly conquered district. ' See Fustel de Coulanges, Les origines du syst^me f^odal, oh. iv-vii. ^ Eoyal Prerogative, ed. 1849, p. 135. CH. I.J Anglo-Saxon Law. 39 singularly little discussion, by Kemble and almost every one who treated of Anglo-Saxon land tenures down to 1893. Difficulties occurred, however, in working out Allen's theory, and were found to increase as one scholar after another entered farther upon details. In particular, it was hard to account for the number of free men, which must have been a considerable one in the time of Edward the Elder at all events, holding land which was not book-land. Various conjectural names for that kind of holding were proposed by Kemble and others, but for none of them was there any authority. If these lands were included in folk-land, and folc-land meant ager publicus, then every one who had not book-land was in name and in law a mere tenant from the State. If not, there was no evidence that land held by the most general "and practically important form of title had any proper name at all. Neither conclusion could be deemed satisfying. In 1893 Mr Paul Vinogradoff' pointed out that Allen's theory was really gratuitous. The documents do not by any means require it ; the analogy of other compounds in which the . word folc occurs is against it ; and when it turns out to give rise to more difficulties than it removes, it seems better to fall back upon the older and simpler explanation. Folk-land, then, appears to have been, as Spelman said, land held without written title under customary law. We have no right to assume that there were not varieties of tenure within this general description, or that custom was uniform even in the same kingdom. It is probable that the alienation of folk-land was difficult, and we do not know to what extent, if to any considerable extent, power to dispose of it by will had been introduced. The problem of reconstructing the old folk-right in detail belongs, however, rather to the history of Germanic social antiquities than to that of the laws of England. The truth is that we know very little about any form of Transition Anglo-Saxon land-holding save book-land, which is a foreign Nomfn" excrescence on ancient Germanic usages. And our interpreta- feudalism, tion of the scanty evidence available must depend in great measure on the manner in which the fuller evidence of the two centuries after the Conquest is interpreted. Even Kemble allowed himself to say some things without warrant. Thus his 1 Folk-land, Eng. Hist. Eev. viii. 1-17. 40 Anglo-Saxon Law. [bk. I. use of the word ' eSel' as a technical term for a free man's holding of land which was not book-land rests on no authority whatever. Later statements which follow or amplify Kemble without verification are merely misleading. All that can usefully he said of the Anglo-Saxon laws of inheritance in this place is that they varied according to local custom. If there were any prevailing customary rule, it was probably that of equal division among sons. After the Norman Conquest book-land preserved its name for a time in some cases, but was finally merged in the feudal tenures in the course of the twelfth century. The relations of a grantee of book-land to those who held under him were doubtless tending for some considerable time before the Con- quest to be practically very like those of a feudal superior ; but Anglo-Saxon law had not reached the point of expressing the fact in any formal way. The Anglo-Saxon and the conti- nental modes of conveyance and classification of tenures must have coalesced sooner or later. But the Conquest suddenly bridged a gap which at the time was still a well-marked one. CHAPTEE II. NORMAN LAW\ Of the law of Normandy as it was on the eve of William's obscurity expedition, very little is known for certain. To illustrate the {"eg^*"™*" period which had elapsed since the settlement of the Northmen lustoiy- in Neustria, there are no written laws, no books on law, but very few charters, while the chroniclers have but little to tell us about the legal structure of the duchy, and what they do tell us is not always very trustworthy. The England of the same period supplies us with the laws of Edward the Elder, JEthelstan, Edmund, Edgar, ^thelred and Cnut; also with a large collection of land-books and writs. Even in later days, after the duke of the Normans had become king of the English, the duchy was slow to follow the kingdom in the production of abiding memorials of its law; it has nothing to set against 1 The following brief sketch is based partly on the first-hand authorities for Norman history, partly on the opinions expressed by Palgrave, Gneist, Stubbs, Freeman in their well-known books ; Stapleton's editions of the Norman Exchequer Bolls ; Brunner's account of the sources of Norman law given in his Anglo-Normannisohe Brbfolgesystem, his Bntstehung der Schwurgerichte, and his article upon this subject in Holtzendorff's Encyklopadie ; Waitz, Ueber die Quellen zur Geschiehte der Begriindung der Normaunischen Herrsohaft in Frankreioh, Naohrichten von der k. GeseUsohaft der Wissenschaften, Gottingen, 1866, pp. 69-95 ; Steeastrup, Inledning i Normannertiden, Copenhagen, 1876, of which the author gave a French translation in the Bulletin de la Society des antiquaires de Normaudie, vol. x. p. 185, under the title Etudes pr^liminaires pour servir a I'histoire des Normands ; von Amira, Die Anf ange des Normaunischen Beichs, Historische Zeitschrift, Neue Folge, vol. iii. p. 241 ; Delisle, Etudes BUT la condition de la classe agricole en Normandie, Evreux, 1851, and the same writer's essays on Norman finance in the BibliothSque de I'Ecole des chartes, ser, II. vol, 5 ; ser. iii. vols. 1, 3 ; the editions of the roUs and custumals referred to below ; Luchaire, Institutions monarchiques, and Luchaire, Manuel des institutions. 42 Norman Law. [bk. i. Domesday Book or against those law-books which we know as the 'Leges' of the Confessor, the Conqueror and Henry the First. The oldest financial records', the oldest judicial records' that it has transmitted to us, are of much later date than the parallel English documents. Its oldest law-books, two small treatises now fused together and published under the title Le Trfes Ancien Coutumier^ are younger and slighter than Our Glanvill, and the Grand Coutumier is younger and slighter than our Bracton* Doubtless we have been more fortunate tl^an our neighbours in the preservation of documents ; still we have every reason to believe that the conquerors of England had little, if any, written law to bring with them. RoUo, it is true, had gained the reputation of being a great lawgiver ; but our own history will show us that such a reputation might be easily gained by one who was regarded as the founder of a state or the representative of a race ; Alfred was becoming, Edward the Confessor was to become, the hero of a legal myth. Rollo may have published laws, in particular laws about theft, but what we hear of them will hardly dispose us to think that they would remain in force for any long time^ But not only had the Normans no written law of their own making ; there was none that they could easily borrow from their French neighbours. Their invasions occurred in the very midnight of the legal history of France ; indeed they brought the midnight with them. The stream of capitularies ceases to flow ; no one attempts to legislate ; and when the worst days are over, the whole structure of society has been so much changed, that the old written laws, the Lex Salica, the ordinances of Merovingian ' Magni Eotuli Scaooarii Normanniae sub Eegibus Angliae, published by Stapleton, and reprinted in Mdmoires de la Sooi^t^ des antiquaires de Normandie, vol. xv. A fragment of the roll of 1184 was published by Delisle, Caen, 1861. 2 These are most accessible in Delisle's Eeoueil de jugements de I'fiohiquier de Normandie an xiii™ sifecle, Paris, 1864. A collection of judgments delivered in the assizes between 1234 and 1237 will be found in Warnkouig's Franzosische Staats- und Eechtsgesohiohte, vol. ii. Urkundenbuch, pp. 48-69. 3 Published by Tardif, Eouen, 1881. * This has been frequently printed. A recent edition by W. L. De Gruchy, Jersey, 1881, gives both the Latin and the French text. An edition is promised by Tardif, who has discussed the authorship of the work in a pamphlet entitled Les auteurs pr6sum6s dn grand coutumier de Normandie. ■^ Dudo, Duchesne, p. 85. The story of EoUo's legislation has been rejected as fabulous, but is defended by Steenstrup, Etudes pr^liminaires, pp. 351-391. CH. II. J Norman Law. 43 and Carlovingian kings will no longer meet the facts. When an Englishman of the twelfth century, the compiler of the Leges Henrici, strives to eke out the old English dooms with foreign texts and has to go as far back as the Lex Salica, which was centuries old before Rollo landed in Normandy, we know that he has no foreign texts at his command that are less obsolete. The yet debated question, whether for a century or there- Norman abouts after their settlement in Neustria, the law of the F^ncK Northmen or Normans was mainly Frankish or mainly Scandi- navian, we are not called upon to discuss. It is now generally admitted that for at least half a century before the battle of Hastings, the Normans were Frenchmen, French in their language, French in their law, proud indeed of their past history, very ready to f:ght against other Frenchmen if Norman home-rule was endangered, but still Frenchmen, who regarded Normandy as a member of the state or congeries of states that owed service, we can hardly say obedience, to the king at Paris. Their spoken language was French, their written language was Latin, but the Latin of France ; the style of their legal documents was the style of the French chancery ; very few of the technical terms of their law were of Scandinavian origin. When at length the ' custom' of Normandy appears in writing, it takes its place among other French customs, and this although for a long time past Normandy has formed one of the dominions of a prince, between whom and the king of the French there has been little love and frequent war; and the peculiar characteristics which mark off the custom of Normandy from other French customs seem due much rather to the legislation of Henry of Anjou than to any Scandinavian tradi- tion'. To say that the law of Normandy was mainly French is to Norman say that it was feudal. But feudalism is an unfortunate word. f|udaL^ In the first place it draws our attention to but one element in a very complex state of society and that element is not the 1 This is frankly admitted by Steenstrup, ifctudes prffiminaireB, p. 375: 'Lea coutumes les plus anciennes de la Normandie datent du xii™ si&ole, et le droit qu'elles nous pr^sentent est franQais, quoiqu'il y ait quelqnea restes des coutumes du Nord. II serait injuste d'enregistrer oes sources dans la legislation seandinave; elles appartiennent k une legislation sp6oiale, k la legislation anglo-normaude.' 44 Norman Law. [bk. i. most distinctive ; it draws our attention only to the prevalence of dependent and derivative land tenure'. This however may well exist in an age which can not be called feudal in any tolerable sense. What is characteristic of ' the feudal period' is not the relationship between letter and hirer, or lender and borrower of land, but the relationship between lord and man, or between lord and vassal, or rather it is the union of these two relationships. Were we free to invent new terms, we might find ' feudo-vassalism' more serviceable than ' feudalism.' But the difficulty is not one which could be solved by any merely verbal devices. The impossible task, that has been set before the word ' feudalism ' is that of making a single idea represent a very large piece of the world's history, represent the France, Italy, Germany, England, of every century from the eighth or ninth to the fourteenth or fifteenth. Shall we say that French feudalism reached its zenith under Louis d'Outre-Mer or under Saint Louis, that William of Normandy introduced feudalism into England or saved England from feudalism, that Bracton is the greatest of English feudists or that he never misses an opportunity of showing a strong anti-feudal bias ? It would be possible to maintain all or any of these opinions, so vague is our use of the term in question. What would be the features of an ideally and perfectly feudal state ? What powers, for example, would the king have, in particular what powers over the vassals of his vassals? Such a question has no answer, for the ideal does not remain the same from century to century, and in one and the same country at one and the same time different men have different ideals ; the king has his opinion of what a king should be ; his vassals have a different opinion. The' history of feudal law is the history of a series of changes which leave unchanged little that is of any real importance. Feudalism This if true of the whole is true of every element of feudal- mandy. ism, and true in the first place of that element which gives feudalism its name. In England from almost, if not quite, the first moment of its appearance, the word feodum seems not merely to imply, but to denote, a heritable right, though a dependent right. But if on the continent we trace back the use of this word, we find it becoming interchangeable with beneficium, and if we go back further we find beneficium inter- ' Waitz, VerfasBungsgesohiohte, vi. 1. CH. II. ] Norman Law. 45 changeable with precarium. A tenancy at will has, we may- say, become a tenancy in fee ; but we cannot speak of a tenancy at will and a tenancy in fee in one and the same breath'. The Norman conquest of England occurs at a particular moment in the history of this process. It has already gone far ; the word feodum is fast supplanting beneficium; the feodum is hereditary; men now see little difference between the feodum and the alodus or alodium, the most absolute form of ownership that there can be, and yet a trait of precariousness clings to the fee ; it is easily forfeitable, and the lord's rights in the land appear in the shape of demands for reliefs and wardships. lb is so also with vassalism. Time was when the vassus was an unfree man, though that time has long since passed away, and some vassals of the king of the French are apt to behave as sovereign princes. It is so again with that most characteristic element of feudalism, jurisdiction in private hands, the lord's court. Its growth, whether we have regard to England or to the continent, seems the obscurest of all problems, for the law is rapidly shifting and changing just at the time when it is leaving the fewest explicit memorials of its shifts and changes. And it is so pre-eminently with the political character of feudalism. Is the ideal feudal tie the loose bond — hardly other than an alliance between two sovereigns — which binds the duke of the Normans to the king of the French ? Does the duke conceive that it is but a similar tie that binds his viscounts and barons to him ? Often enough such questions must be solved by the sword ; there is no impartial, tribunal for their solution. It is characteristic of the time that rights of sovereignty shade off into rights of property; the same terms and formulas cover them both; the line between them is drawn by force rather than by theory. This had been so in Normandy. Every moment at which the duke was weak had been marked by rebellions; duke Wilham had been stern and victorious and had reduced his vassals to submission ; but so soon as he was dead there was another era of anarchy and private war. Indeed ' It seems to be now generally admitted that the Boman precarium is one of the germs of feudalism; Waitz, Verfassungsgesohiobte, it. 229; Brunner, Beehtsgeschichte, i. 211 ; Fustel de Coulanges, Le b^n^fice et le patronat. It has been pointed out that even in the Digest, 43, 26, 14 (Paulus) the two words precarium and beneficium are brought into contact ; ' magis enim ad donatioues et benefioii causam quam ad negotii oontracti speetat precarii conditio.' 46 Norman Law. [bk. i. a first glance at the Norman chronicles might induce us to say that the Normans had little law beyond ' the simple rule, the good old plan'; but lawlessness is often a very superficial phenomenon and whenever the duke was strong enoiigh to keep the peace then law revived. We hear the same of England; times of 'unlaw' alternate with times of law; at one moment prudent travellers journey in parties of twenty, at the next a girl may go from end to end of the realm and fear no harm ; all depends upon the ruling man. To say then of the Norman law of William's day that it was feudal law, is to say very little ; but it would be diflficult for us to say much more without going beyond the direct and contemporary evidence or repeating what has elsewhere been admirably said of the history of feudalism in general. But a few traits may be noted. Dependent . To the great generalisation which governs the whole scheme tenure. of Domesday Book, the theory that every acre of land is held immediately or mediately of the sovereign lord, the Normans in their own country may not have arrived. But Domesday Book by itself would sufiice to show that it was not far from their minds and in the Norman charters we frequently discover the phenomena of dependent tenure. The rich man who wishes to endow a religious house endows it with land ; but in many cases we see that he is not an absolute owjaer of the land that he gives, or at all events is not the only person interested in it. The land is held by tenants of divers classes, milites, vavassores, hospites, coloni, conditionarii, villani, rustici, and these tenants (that is to say, his rights over these tenants) he gives to the church'. But further if he has subordinates who have rights in the land, he has also superiors with rights in the land; he makes the gift with the consent of his lord; that lord's con- firmation is confirmed by the duke of the Normans, perhaps it is even confirmed once more by the duke or the king of the French". Of the alodium we often read and occasionally it is ' The term which occurs most often is hospites, a term which did not obtain - permanent home in England, though it appears occasionally in Domesday, e.g. D. B. i. 259 b. The Conqueror gives certain vills to the Abbey of Caen ' cum oolonis et oonditionariis sen liberis hominibus'; Gall. Christ, xi. Instrum. p. 66 ; Neustria Pia, p. 626. In another charter he confirms ' dominium cum militibus quod dedit Olilia'; Gall. Christ, xi. Instrum. p. 203. " In 968 Duke Eichard the Fearless grants BretteviUe to Saint Denis with the assent of his lord Hugh Duke of the French ' cum assensu senioris mei Hugonis Franoomm Prinoipis'; Bouquet, ix. 731. In 1006 King Bobert con- CH. II. j Norman Law. 47 contrasted with the beneficium, the one still meaning absolute ownership, the other dependent, and in some degree precarious, tenure*. But the two are being fused together. Sometimes the alodium is held of a lord and the alodial owner does not dispose of it without his lord's consent ; nay, the lord has rights over him and over it, and those rights can be conveyed to a third person^ On the other hand the beneficium has gone half-way to meet the alodium. The counts and viscounts and barons of Normandy held beneficia, feoda, honores of the Duke ; in return they owed him military service, though the precise amount of the service may not have been fixed'. We need not suppose firmed a, gift made by Duke Eichard the Good to Fdcamp ; Gall. Christ, xi. Instrum. p. 7. Such transactions as these were probably exceptional; but instances in which Norman lords confirm gifts made by their subordinates and in which the Duke confirms these confirmations are abundant. See for example Orderic's account of the gifts to Saint Evroul ; ed. le Prevost, vol. ii. p. 16 ff. Ralph Taissou when endowing an abbey forbids any of his barons or other men to give or sell any of their possessions to any other church ; Gall. Christ, xi. Instrum. p. 63. 1 Neustria Pia, 311 : ' Ego Abbas Albertus Abbatiae SS. Stephani Protho- martyris et Christi Confessoris Maximini erat mihi quidam alodus ex materna hereditate, non ex alicuius beneficio, quem S. Petro in Gemmetieo monasterio...dedi. Est autem ipse alodus in pago Belismensi.' Ibid. 217 in a charter for F^Qamp, Eichard II. says that he is pleased to confirm ' ea quae fideliter communi nostro (?) aut praecario vel beneficiis quae nostri iuris erant vel de hereditatibns quas paterno iure possidebant eoncessere.' The first words of this passage seem corrupt, but the beneficium is treated as something that is not a hereditas and is brought into connexion with precarious tenure. Eouen Cartulary (ed. DevUle), 451 : ' dedit S. Trinitati omnem decimam terrae suae in alodio quam domini sui Eodolfi de Warenna tenebat beneficio.' Neustria Pia, 634 ; the abbot of Caen ' emit allodium ' and afterwards ' dedit in feodo.' 2 Neustria Pia, 165 : Duke Eichard II. gives to Saint Wandrille ' alodum quem de me tenebant Osbernus et Ansfredus.' Neustria Pia, 627 : William the Conqueror grants to the Abbey of Caen ' totum alodium quod tenent Osmundus, Aculeus, Eichardus et Eogerius in territorio Calvi Montis super Divam ; et etiam totum illud quod tenent quieumque allodiarii infra leugam Pontis Divae.' Ibid. 636 : ' Eogerius de Eozel vendidit Gisleberto Abbati [de Cadomo] concedente Normaniae Comite, pro xv lib. census allodium suum totum quod habebat in Eozel tah conditione ut eum de Sancto [Stephano] teneret per tale servitimn quale antea ex eo Comiti reddebat.' In this case the alodiary does service for his land. ^ It is thus for example that William of Jumi^ges (Duchesne, 250) speaks of the relation between Duke Bichard II. and his bastard brother Wilham : — ' Is enim [Willelmus] fraterno contubernio Oximensem ab ipso [Eioardo] accipiens mimere comitatum ut inde exhiberet ei militiae statuta... dominium ejus sprevit.' William the Conqueror gives to the church of Lisieux ' terram de Pontaines...et servitium militum... dominium cum militibus quod dedit Olilia'; 48 Norman Law. [bk. that this had been so from the first, from the day when, according to Norman tradition, Rollo roped out the land and distributed it among his followers'. Whatever may have been the terms upon which Eollo received Normandy from Charles the Simple — and the Norman tale was that he received it as the most absolute alodium^ — his successors were conceived as holding a fief of the kings of the French in return for homage and service; and so, whatever may have been the terms on which RoUo's followers acquired their lands, their successors were conceived as holding benefices or fiefs of the dukes of the Normans in return for homage and service. But from the first the rights of the Norman nobles seem to have been hereditary rights. It may well be however that there was even in theory a certain element of precariousness in their tenure, an element which appears in later days in the shape of the duke's right to reliefs and wardships, and certainly their hold on the land was not sufficiently secure to prevent the duke from habitually having splendid fiefs to give away to his kinsfolk". On the eve Nenetria Pia, 585; Gall. Christ, xi. Instrum. p. 203. Eichard son of Abp. Robert of Eouen makes a gift to Saint Sanveur in these terms 'apud A dedi totum quod in dominio habebam excepto feodo militum'; Gall. Christ, xi. Instrum. p. 126, where the date assigned is eirc. 1060. 1 Dudo, Duchesne, 85 : ' Illam terram suis fidelibus funiculo divisit.' ^ According to Dudo, Duchesne 82-84, the grant was made ' in sempiteruam per progenies progenierum possessionem... quasi fundum et alodium in sempi- ternum...in alodio et in fundo.' ' As regards the 'relief the main proof is to be found in Domesday Book; e.g. on the first page of it we read that when a Kentish alodiarius dies ' rex inde habet relevationem terrae.' William of Jumi^ges, Duchesne, 250, says that Kichard the Good gave to his brother William the county of Eu and a beautiful girl called Lescelina the daughter of one Thurkill a man of very noble birth. The duke seems to be disposing of the hand of a. vassal's daughter. So again Orderie (ed. le Prevost), ii. 409, speaking of the days of William the Conqueror, says ' Guillelmus Gualterii de Falesia fillus fuit et in militia nimium viguit, uude Guillelmus Princeps filiam Guidmundi cum toto ei honore Molinensi contulit.' It is not impossible that the king of the French had twice asserted a right to the wardship of an infant duke of the Normans. As to the case of Louis d'Outre-Mer and Eichard the Fearless, see Palgrave, Hist. Normandy, ii. chs. 3, 4 ; Freeman, Norman Conquest, oh. iv. § 4 ; Kalckstein, Geschichte des Franzosisehen Konigthums, i. 238-9. Dndo's romantic tale may be false enough, but the important point is, that not very long after the events the Normans believed that the king had asserted and abused a right of wardship. Then as to the minority of the Conqueror himself :— Henry of Huntingdon, p. 189, tells us that Harold son of Cnut banished his father's widow, the Norman Emma, and that she went to Flanders instead of to Normandy 'Willelmo namque domino Normannorum adhuc in aetate puerili CH. 11.] Norman Law. 49 of the conquest of England many of the great houses owed their greatness to some more or less legitimate relationship — legitimacy was a matter of degree — between them and the ducal family. Still the great feoda were hereditary and seem- ingly even women might inherit them. The alodium and the beneficium were meeting in the feodum; a. new scheme of proprietary rights, of dependent proprietary rights, was being fashioned, and into that scheme every acre of a conquered kingdom might easily and naturally be brought \ ^'^^ Some such scheme of dependent ownership is necessary if Seignoriai among the subjects of proprietary rights are to be reckoned ^"^ "'^' justice and office. It can never be suffered that one who is not a sovereign prince should own a jurisdiction in the absolute sense in which he owns his flocks and herds. That in Normandy the right of doing justice and receiving the profits thereof had become a heritable right is plain. The honores of the Norman nobles comprised rights of jurisdiction ; the counts and vis- counts were in name the successors of royal officials, of Frankish comites and vicecomites whose offices had become hereditary^ The lands of the churches again were defended by ducal grants cum rege Francorum manente, Normannia .fiscus regalia erat.' It is difficult to square this story with the known facts ; still there seems to he a great deal in the behaviour of the king towards Normandy and its young duke that is best explained as an attempt of a lord to exercise rights over the land of an infant vassal. See the account of William's minority in Freeman, Norman Conquest, vol. ii. and see Luchaire, Institutions monarohiques des premiers Cap^tiens, i. 113-4; ii. 15. 1 About the time of the Conquest the word feodum becomes very common in the Norman charters ; but beneficium still appears. William of BellSme endows a monastery 'de nostris hereditariis benefioiis'; Neustria Pia, 424. William of Jumi^ges, Duchesne, 259, tells how William of Belldme held the castle of Alen(;on 'beneficii iure' and tried to shake off 'serviminis iugum.' Luchaire, Institutions monarchiques des premiers CapStiens, i. 87, remarks that in the charters of the French kings beneficium is still common under Hugh Capet and Eohert II. while feodum becomes usual under Henry I. and Philip I. He also, ii. 17, fixes the very moment of the Norman conquest of England as that at which the kings are finally forced to admit that the great fiefs have become hereditary, though practically they had been hereditary for a very long time past. As to the inheritance of great fiefs by females the case of Mabel of BellSme is a capital instance. Women were inheriting fiefs in France from the end of the tenth century onwards ; Luchaire, Manuel des institutions framjaises, 167. 2 Ord. Vit., vol. ii. p. 470: 'Hugo Paganus Crassa Lingua et Agnes uxor eius atque Guide filius eorum concesserunt S. Ebrulfo viceoomitatum, id est viariam, quantam habebant in Villariis Vastatis.' P. M. 4 50 Norman Law. [bk. r. of ' immunity,' grants modelled on Frankish precedents^ But the principles which regulated the existence and the competence of seignorial courts are very dark to us. Whether the right to hold a court can only be conferred by the sovereign's grant, or whether it arises from the mere relation between lord and men, or between lord, and tenants, is a question to which we get no certain answer, for a long time after the conquest of England, whether we ask it of England or of Normandy. In good times however the duke's justice was powerful throughout his duchy ; it is as supreme judge hearing and deciding the causes of all his subjects, the guardian of the weak against the mighty, the stern punisher of all violence, that his courtly chroniclers love to paint him^ and we may doubt whether in his own country the Conqueror had ever admitted that merely feudal arrangements could set limits to his jurisdiction^, thrducii ^ *° ^°y constitutional limitations on the duke,'s power, power. the most opposite opinions have prevailed : — the duke of the earliest period has been everything from the most absolute of monarchs to a mere first among equals*. What we know is that when the time for the conquest of England is approaching, the duke consults, or professes to consult the great men of his realm, lay and spiritual, the optimates, the proceres of Nor- mandy. He holds a court ; we dare hardly as yet call it a court of his tenants in chief; but it is an assembly of the great men, and the great men are his vassals. Seemingly it is for them to make the judgments of the court', and just as the English ' The very early charter by which Eichard the Fearless grants BrettevUle to Saint Denis contains «. full 'immunity'; Bouquet, ix. 731. Less expUcit clauses of the same kind are found in the charters of Eichard the Good for Fecamp and for Saint Michael of the Mount; Neustria Pia, 215-7, 377-8. Anothel: instance is afforded by the charter of William of BelUme for Lonlai; Neustria Pia, 425. Observe also the words 'in pasnagio, in venationibus, in placitis' in the charter for C^risi; Neustria Pia, 431. 2 See in Dudo, Duchesne, 136-140, the panegyric on Eichard the Fearless, also what William the Archdeacon of Lisieux, Duchesne, 193, says of the Conqueror. ' An argument to prove that the feudalization of justice had gone further in England than in Normandy, might be founded on the fact that the Normans in England when they wished to describe the rights of private jurisdiction, ahnost invariably employed the English terms sake, sohe etc. " The one extreme is marked by Palgrave, the other by Steenstrup. ^ Thus in or about 1077 a suit came before William's court; he orders the Archbishop of Eouen, Eoger de Beaumont ' and many other barons' to make a judgment 'ut facerent iude indicium'; Mtooires de la Sooi^t6 des antiquaires de Normandie, vol. xv. pp. 196-7. CH. II. J Norman Law. 51 witan attest or confirm the liing's grants, so the Norman proceres attest or confirm the duke's grants'. In the lower courts also, so it would seem, the lord of the court is not the only judge ; he is surrounded by doomsmen^. Probably the ordiaary procedure of the courts was much Legal the same in Normandy and in England. In neither country had men passed the stage at which they look to the supernatural for proof of doubtful facts. The means of proof are solemn formal oaths and ordeals designed to elicit the judgment of God^ One ordeal the Normans recognised which had no plac e in English law, namely the ordea.l of bat tle*. When immediately after the conquest we find this mode of proof in England we may say with some certainty that here we have a Norman institution. The same may be said with great probability of a far more important institution, of which we must speak at length hereafter, namely of the sworn inques t, the germ of the jury- ^ Perhaps cr iminal la w, or what then served as criminal law, Criminal h ad reached a later stage of development in Normandy than it had in Engla nd. The great need of the time was that the ancient system of money compositions, of bdt and wer and wite, should give way before a system of true punishments, and in Normandy the alternations of fierce anarchy and stern repres- sion may have hastened this desirable process. At any rate from Normandy we hear little or nothing of the old money payments, though at one time they had been familiar enough both to the Franks and to the Norsemen, and in England the writers of the twelfth century, who still know all about the wer of the West-Saxon, the Mercian, the Dane, say no word of the 1 See e.g. Bichard II.'s grant to St Wandrille, his grant to St Michael of the Mount, the Conqueror's charter for Fecamp ; Neustria Pia, 165-6, 377-9, 223-4. ^ In 1086 a suit is heard in the court of Eobert of Bellfime - he presides, but three abbots, nine named laymen, and many others are the ' indices huius placiti'; Neustria Pia, 311. 3 The ordeal of fire occurs in the legend of Eollo ; Dudo, Duchesne, p. 85. William Pantolf purged himself of the murder of Mabel of Bellfime by carrying the hot iron ; Ord. Vit. (ed. Prevost) ii. 482. The ordeal is also mentioned in the statutes of the council of Lillebonne ; ibid. 322. ■' See William's charter for St Wandrille, Neustria Pia, 168 ; the champions being ready for battle William interferes and makes peace. This is an early instance of a 'Concordia per finem duelli.' 4—2 52 Norman Law. [bk. i. cal law. Norman's wer and show no acquaintance with any Norman or FranMsh criminal tariiF\ Ecciesiasti- We may be more certain that in another direction Norman law had outstripped English law along what must seem to us a destined path of progress. It had come in sight of an ecclesi- astical jurisprudence, of conflicts and compacts between church and state. Within our island church and state might still appear as but two phases of one organization ; on the continent this could not be so. Long ago the claim of a ' supemational' church to jurisdiction had raised difficult problems and been satisfied for a while by complicated compromises — but only for a while, for the church was not easily satiable °. By the conquest England was drawn into the mid-stream of a contro- versial torrent. Whatever else he might leave for the future, the Conqueror would have to define in precise terms his relation to the spiritual power in his new kingdom, and his definition would, if this were possible, be the definition which had come down to him from Norman dukes and Frankish kings. On the one hand he would have to concede an ample room to 'the canons and episcopar laws,' on the other hand he would insist that the spiritual power should assume no right in England that it had not exercised in Normandy'. The truce One ecclcsiastical institution there was in Normandy, which, so William might hope, would hardly be necessary in England — the truce of God. The old family blood-feud was not dead in England, but it had not as yet developed into the feudal right of private warfare. In France a great religious movement, which had its origin in the south, had been setting limits to 1 In the Norman chronicles the crimes that we read of are chiefly the rebellions of great men, and when the rebel is brought to justice his punishment is imprisonment or exile and disherison. The insurgent peasants were punished by mutilation. In England the kinsfolk of the slain Norman receive a certain part of the murder fine which falls on the hundred if the slayer be not brought to justice; they receive six marks out of forty-six; the rest go to the king; Leg. Heurici, 91 § 1; Bdw. Conf. 15 § 6. ' Nissl, Geriohtsstand des Olerus; Brunner, D. R. G., ii. 315 ff. ■' Eadmer, Hist. Nov. p. 9, just before he makes his well known statement about William's dealings with ecclesiastical matters, has said of him ' usus ergo atque leges quos patres sui et ipse in Normannia habere solebant in Anglia servare volens.' His edict (Leg. Will, rv.) establishing the ecclesiastical courts supposes that their proper province is known; it is that allowed to them in Normandy; it is that which will be made more definite by the Council of Lillebonne ; see Ord. Vit. (ed. le Prevost) ii. 316, of God. CH. ii.J Norman Law. 53 this anarchical right, placing certain places and persons and seasons under the protection of the church and outside the limits of fair lighting. ( The truce of God had been received in Normandy; it reigned there after England had been conquered; but we only find very faint and uncertain traces in England either of it or of that tolerated private warfare which it presupposed'.). Of the condition of the great mass of the inhabitants of Condition Normandy, the tillers of the soil, we know singularly little ; the piasantiy. chronicles have hardly a word to say about them, the charters do little more than mention their existence. The same might be said of the English chronicles and the English charters, but then for England we have the dooms which often speak of the ceorl and the theow. This we know, that in the early years of Richard the Good there was a formidable revolt of the Norman peasants, which was fiercely suppressed. According to the chronicler, the insurgents showed a high degree of organization ; they sent representatives to a central assembly^ This story, remarkable if true, is scarcely less remarkable if untrue, but the mere rebellion will make us believe that the Norman peas ant was seldom a sla ve. It has been said by high authority that there are but few traces of any serfage in Normand y even in 1 As to the treuga Dei in Normandy see Ord. Vit. (ed. Prevost) ii. 316 and the editor's note; as to the truce generally see Huberti, Gottesfrieden und Landfrieden (Ansbach, 1892). In the so-called Leges Edwardi Confessoris, c. 2, we read that the peace of God prevails during certain holy seasons, e.g. from noon on Saturday throughout Sunday, and that if anyone breaks this, the bishop has jurisdiction. This claim of jurisdiction probably betrays French influence. The laws of .Ethelred v. 13-19; vi. 19-25; and of Cnut i. 15-17, forbid work and litigation during certain holy seasons and vaguely add that during these seasons peace and concord should prevail. Even this may betray the influence on England of the great ecclesiastical movement which established the treuga Dei, but stQl we have no English evidence of the truce itself prior to 1066, nor any of it after that date, save in the untrustworthy Leges Edwardi. An allegation of a breach of the peace of God became a common form in the pleadings of the thirteenth century, but only as an un- traversable ornament. The peace of God was then conceived as existing always and everywhere. Of private warfare we shall speak hereafter. 2 The only good authority is WiUiam of Jumi^ges (Duchesne, 249) ; and he says very httle; the poems of a later age cannot be trusted about such a matter. See Delisle, 6tudes sur la condition, de la olasse agricole, 121; Freeman, Norman Conquest, i. 257 (ed. 3) ; Palgrave, Hist. Normandy, iii. 41 ; Steenstrup, Etudes praiminaires, p. 346. These peasants have appeared in every character from that of GaUo-Bomans reclaiming Eoman liberties, to that of untamed Danes, 54 Norman Law. [bk. i. the eleventh century, none in the twelfth'. The charters of the Conqueror's day frequently speak of hospites,Xoloni, rustici, villani, rarely of servi, though now and again we have hints that some men and some lands are not deemed 'free'". In later times Normandy was distinguished among the provinces of France by a singular absence of serfage, and such evidence as we have tends to show that the Conqueror left a land where there were few slaves for one ia which there were many, for one in which the slave was still treated as a vendible chattel, and the slave-trade was flagrant. Juris- I The Normans then had no written law to bring with them prudence. ^^ England and we may safely acquit them of much that could be called jurisprudence!^ Not but that there were among them men distinguished above others for their knowledge of the law. The famous founder of the Abbey of Bee, Herlwin, who had spent most of his life as layman and knight, was deeply learned in the law of the land, and when he had become an abbot he still gave opinions in temporal causes ; but not until he was near forty years of age did he learn the first rudiments of letters ^ His legal knowledge was probably the same in kind as that attributed, as we shall read hereafter, to the English Bishop iSlthelric and the monks of Abingdon, a knowledge of the law to be evoked by concrete cases, not a body of doctrine Lanfranc to be taught or written in a book. But the mention of Herlwin lawyer. must remind us of Herlwin's prior, of Lanfranc the lawyer of Pavia, of Lanfranc the Conqueror's right-hand man. Those who tell us of the great theologian, of the great disciplinarian, never forget to add that he was a lawyer of world-wide fame, the most accomphshed of pleaders. Now the Lombard lawyers, especially the lawyers of Pavia, had been engaged in a task well fitted to ' Delisle, op. cit. 17-19; Luchaire, Manuel des institutions, 295. " Thus in a charter of the Conqueror for Trinity Abbey at Caen 'item in insula de Gerzoi unum molendinum et terrain duorum francorum hominum ' ; Neustria Pia, 659. So in a charter of the Conqueror for S. Stephen's Abbey at Caen, Neustria Pia, 626, 'Trado igitur... villas iuris mei...cum colonis et oonditionariis seu liberis hominibus.,.Et homines quidem duarum praemissarum viUarum videlicet C. et E. qui francam terram non tenent ad servitium ecolesiae et monachorum...conoedo.' Delisle, op. cit. 17, 18, gives a few instances of servi in the eleventh century. ' Vita Herluiui, Lanfranci Opera, ed. Giles, i. 270, 'Abbas peritus erat in dirimeudis causarum saeoularium oontroversiis...Legum patriae scientissimus praesidium suis erat contra iniquos exaotores.' Ibid. 265, ' Prima litterarum elementa didioit cum iam existeret annorum prope quadraginta.' CH. II. j Norman Law. 55 be an education for one who was to be William's prime minister. They had been harmonizing, digesting and modernizing the ancient statutes of the Lombard kings, a body of law very similar to our own old English dooms\ Some Roman law they knew, and unless Pavian tradition deceives us, we may still read the ingenious arguments by which the youthful Lanfranc puzzled and abashed his more conservative opponents, argu- ments which derive their force from the supposition that the dooms of king Liutprand and the institutes of Justinian are or ought to be harmonious^ Lanfranc, yet a layman, left Italy for Normandy and opened a school, a secular school, at Avranches. What he taught there we are not told; but he may have taught law as well as grammar and rhetoric. He was remembered in Normandy as a great Romanist'. If he taught law at Avranches or at Bee* then we may say that the Normans were being educated for their great exploit ; when the time for subduing England should come, the man at arms would have the lawyer behind him. But, be this as it may, the very existence of Lanfranc, who knew Lombard law and Roman law and Canon law — when he was Archbishop the decreta and canones were ever in his mouth ^ — who mastered English law so 1 Brunner, Deutsche Bechtsgeschiohte, i. 373, says that the Lombard, Saxon and old English (Anglo-Saxon) lawS form a class by themselves, agreeing in many respects among themselves and differing from the other folk laws. ''• Lanfrano's juristic exploits are chronicled in the Liber Papiensis, Monu- menta Germaniae, Leges, iv. pp. xcvi., 402, 404, 566. It is not absolutely certain that this Lanfranc is our Lanfranc, but the part here assigned to him, that of confuting his elders, agrees well with what is said by Milo Crispin, Opera Lanfranci, ed. Giles, 291, 'Adolescens orator veteranos adversantes in actlonibus causarum frequenter revicit, torrente faoundiae accurate dioendo.' ^ Eobertus de Monte, ann. 1032, ed. Howlett, p. 25, 'Lanfrancus Papiensis et Gamerius gocius eius repertis apud Bononlam legibus Bomanis, quas Justinianus imperator Bomanorum...emendaverat, his inquam repertis, operam dederunt eas legere et aliis exponere.' Savigny, Gesch. des Bom. Eechts, tap. xxvii. § 8, points out that the story cannot be true ; Lanfranc must have left Italy before the days of Irnerius. ^ See Savigny, op. oit., kap. vi. § 135. Bobert of Torigny (Eobertus de Monte), ann. 1117, ed. Howlett, p. 100, tells how Ivo of Chartres, the famous canonist, had when a, youth heard Lanfranc in the school at Beo 'de saeoulari- bns et divinis litteris tractantem.' 5 See Lanfranc's letters, especially No. 26, ed. Giles, in which he recommends Bishop Herbert to mend his ways and read the canons — ' Postpositis aleis, ut maiora taceam, ludisque saecularibus -quibus per totam diem vacare diceris, divinas litteras lege, decretisque Bomanorum Pontifioum saorisque oanonibus praecipue studium impende.' 56 Norman Law. [bk. i. thoroughly that he carried all before him even when the talk was of sake and soke'^, must complicate the problem of any one who would trace to its sources the English law of the twelfth century. Who shall say that there is not in it an Italian element^ ? The Norman conquest takes place just at a moment when in the general history of law in Europe new forces are coming into play. Roman law is being studied (for men are mastering the Institutes at Pavia and will soon be expounding the Digest at Bologna) ; Canon law is being evolved, and both claim a cosmopolitan dominion. ' See below, p. 71. ^ Palgrave, Hist. Normandy, iii. 575, speaking of Domesday Book says, 'The caKgrapliy betrays an Italian hand, and leads to the supposition that it was under the inspection and direction of the lettered Lanfranc that the work was compiled.' CHAPTEE III. ENGLAND UNDER THE NORMAN KINGS. The Norman conquest is , a catastrophe which determines Effects the whole future history of English law. We can make but Gorman the vaguest guesses as to the kind of law that would have eonqueet. prevailed in the England of the thirteenth century or of the • nineteenth, had Harold repelled the invader. We may for example ask, but we shall hardly answer, the question, whether the history of law in England would not have closely resembled the history of law in Germany, whether a time would not have come when English law would have capitulated and made way for Roman jurisprudence. But it is very slowly that the consequences of the great event unfold themselves, and they are not consequences that can be deduced from the bare fact that Frenchmen subjugated England. Indeed if we read our history year by year onwards from 1066, it will seem for a long time doubtful whether in the sphere of law the conquest is going to produce any very large permanent changes. The Normans in England are not numerous. King William shows no desire to impose upon his new subjects any foreign code. There is no Norman code; Norman law does not exist in a portable, transplantable shape. English law will have this advantage, and it is a great advantage, in the struggle : — a good deal of it is in writing. But then the problem to which the historian must address No mere himself should not be stated as though it were a simple two na- ethnical question between what is English and what is French, "ona""^^- 58 JEngland under the Norman Kings, [bk. i. The picture of two streams of law meeting to form one river would deceive us, even could we measure the volume and analyze the waters of each of these fancied streams. The law which prevails in the England of the twelfth century — this one thing we may say with some certainty — can not be called a mixture of the law which prevailed in England on the day when the Confessor was alive and dead, with the law which prevailed in Normandy on the day when William set sail from Saint Valery. Nor can we likexi it to a chemical compound which is the result of a combination of these two elements. Other elements which are not racial have gone to its making. Hardly have Normans and Englishmen been brought into contact, before Norman barons rebel against their Norman lord, and the divergence between the interests of the king and the interests of the great feudatories becomes as potent a cause of legal phenomena as any old English or old Frankish traditions can be. Nor, to take but one other example, dare we neglect if we are to be true to our facts, the personal characters of the great men who accomplished the subjection of • England, the characters of William and Lanfranc. The effects, even the legal effects, of a Norman conquest of England would assuredly have been very different from what they were, had the invading host been led by a Robert Curthose. And in order to notice just one more of the hundred forces which play upon our legal history, we have but to suppose that the Conqueror instead of leaving three sons had left one only, and to ask whether in that case a charter of liberties would ever have been granted in England. We have not to speak here of all these causes ; they do not come within the history of law ; only we must protest against the too common assumption, that the English law of later times must in some sort be just a mixture, or a compound, of two old national laws. History of If for a moment we turn from the substance to the language, language of the law, we may see how slowly what we are apt to think the most natural consequences of the conquest manifest themselves. One indelible mark it has stamped for ever on the whole body of our law. It would be hardly too much to say that at the present day almost all our words that have a definite legal import are in a certain sense French words. The German jurist is able to expound the doctrines of Roman law in genuinely German words. On many a theme an English CH. III.] England under the Norman Kings. 59 man of letters may by way of exploit write a paragraph or a page and use no word that is not in every sense a genuinely English word ; but an English lawyer who attempted a similar puritanical feat, would find himself doomed to silence. It is true, and it is worthy of remark, that within the sphere of public law we have some old terms which have come down to us from unconquered England. Earl was not displaced by count, sheriff was not displaced by viscount, our king, our queen, our lords, our knights of the shire are English ; our aldermen are English if our mayors are French ; but our parliament and its statutes, our privy council and its ordinances, our peers, our barons, the commons of the realm, the sovereign, the state, the nation, the people are French ; our citizens are French and our burgesses are more French than English. So too a fe,w of the very common legal transactions of daily life can be described by English verbs. A man may give, sell, buy, let, hire, borrow, bequeath, make a deed, a will, a bond, and even be guilty of manslaughter or of theft, and all this in English. But this is a small matter. We will say nothing of the terms in which our feudalized land law is expressed, estate, tenement, manor, mortgage, lease and the like, for though we have English freeholds and half-English copyholds, this is a region in which we should naturally look for many foreign terms. But let us look elsewhere and observe how widely and deeply the French influence has worked. Contract, agreement, covenant, obligation, debt, condition, bill, note, master, servant, partner, guarantee, torb, trespass, assault, battery, slander, damage, crime, treason, felony, misdemeanour, arson, robbery, burglary, larceny, property, possession, pledge, lien, payment, money, grant, purchase, devise, descent, heir, easement, marriage, guardian, all are French. We enter a court of justice ; court, justices, judges, jurors, counsel, attorneys, clerks, parties, plaintiff, defendant, action, suit, claim, demand, indict- ment, count, declaration, pleadings, evidence, verdict, conviction, judgment, sentence, appeal, every one and every thing, save the witnesses, writs and oaths, have French names. In the province of justice and police with its fines, its gaols and its prisons, its constables, its arrests, we must, now that outlawry is a thing of the past, go as far as the gallows if we would find an English institution. Right and wrong we have kept, and though we have received tort we have rejected droit : but even 60 England under the Norman Kings, [bk. i. law probably owes its salvation to its remote cousin the French lei^. straggle But all this is the outcome of a very gradual process ; we can Latin*" not say that it is the necessary result of the conquest of England Enrfidi"'"* by French-speaking men. Indeed for some time after the conquest the English language seems to have a fair chance of holding its own in legal affairs. In the first place the combat between English and French, if it must begin sooner or later, can for a while be postponed or concealed, for there is a third and a powerful rival in the field. Latin becomes the written language of the law. It was a language understood and written by the learned men of both races : it was the language of such legal documents as the Normans knew, and though it was not the language of the English dooms or the English courts, still it was the language of the English charters or land-books. In the second place English had long been a written language and a written language which could be used for legal and governmental purposes, while French was as yet hardly better than a vulgar dialect of Latin : — French would become Latin if one tried to write it at its best. And so the two languages which William used for his laws, his charters and his writs were Latin and English". Again there were many good reasons why the technical terms of the old English law should be preserved if the king could preserve them. They were the terms that defined his royal rights. On the whole he was well satisfied with the goodly heritage which had come to him from his cousin King Edward. If only he could maintain against his followers the rights of the old English kingship, he would have done almost as much as he could hope to do. And so his rights and their rights must be registered in the old English terms. His clerks must still write, if not of sacu and socne, still of saca et soca. Many foreign words have made their way into Domesday Book, but many old English words which had definite legal meanings were preserved. 1 The connexion between our law and the French lei or lot (Lat. legem) is for the etymologist a remote one and Henry I. knew what he was about when he restored to us the lagam (not leyem) Eadwardi. But the two words attracted each other. '' The French set of ' Leges Willelmi' will be mentioned below ; it is private work. The well-known passage about the English and French languages in the would-be Ingulfs History of Crowland (Scriptores post Bedam, p. 512 b) is one of that forger's clumsiest falsehoods. CH. III.] England under the Norman Kings. 61 During the century that follows Latin keeps its pre-eminence, Latin as a and when, under Henry II. and his sons, the time comes for the language. regular enrolment of all the king's acts and of all the judgments of his court, Latin becomes the language of our voluminous official and judicial records. From this position it is not dislodged until the year 1731, when it gives place to English' Of course long before that date both French and English had been used for some very solemn, perhaps the solemnest legal purposes ; but seemingly we may lay down some such rule as this, namely, that if a series of records goes back as far as the twelfth or the first half of the thirteenth century, it will until the reign of George II. be a series of Latin records. It is only in the newer classes of authoritative documents that either English or French has an opportunity of asserting its claims. French becomes the language of the privy seal, while Latin remains the language of the great seal. French expels Latin and English expels French from the parliament rolls and the statute rolls, but these rolls are new in Edward I.'s day^ In particular Latin remains the language in which judicial proceedings are formally recorded, even though they be the proceedings of petty manorial courts. In Charles I.'s day the fact that the Star Chamber has no proper Latin roll can be used as a proof that it is an upstart court'. But though throughout the middle ages some Latin could Struggle 1 1 1 1 -, , 11 1111 .between be written by most men who could write at all, and the lord ot French and a manor would still have his accounts as well as his court rolls °^ '^ made up in Latin, still only the learned could speak Latin readily, and it could not become the language of oral pleading or of debate. Here was a field in which French and English had to strive for the mastery. There could for a long while be no doubt as to which of these two tongues would be spoken in and about the king's court. The king spoke French, his barons Ftench, his prelates French, and even when barons and 1 Statute 4 Geo. II. o. 26. 2 Our first parliament roll comes from 1290 and there is some French on the roll of 1293 ; Kot. Pari. i. 101. The very first entry on our statute roll as it now exists, the Statute of Gloucester 1278, is in French, and if, as seems probable, a membrane containing the Statute of Westminster 1275 has been lost, this also was covered with French writing. ' Stat. 16 Car. I. c. 10, abolishing the Star Chamber, solemnly recites the Statute 36 Edw. III. Stat. i. c. 15, which says that (despite the use of English as a medium for oral pleading) all pleas are to be enrolled in Latin. 62 England under the Norman- Kings, [bk. i. prelates were beginning to think of themselveB as Englishmen, some new wave of foreign influence would break over the court ; the new French queen brings with her a new swarm of Frenchmen. And ' the king's court' was not then a term with several distinct meanings; the language of courtiers and courtliness was of necessity the language of business, discussion, pleading. All this might well have happened however, and yet the English language, which was in the future to be the language even of courtiers, might have retained its stock of old legal terms and its power of engendering new legal terms. A French-speaking royal tribunal might have been merely superimposed upon an English substructure. But here what is perhaps the main theme of our legal history during the two centuries which follow the conquest, decides the fate of words. Slowly but surely justice done in the king's name by men who are the king's servants becomes by far the most important kind of justice, reaches into the remotest corners of the land, grasps the small affairs of the small folk as well as the great affairs of the earls and barons. This is no immediate and no necessary effect of the Norman conquest. It would never have come about if the great men who helped William to conquer England could have had their way ; William himself can hardly have dared to hope for it. The destiny of our legal language was not irrevocably determined until Henry Victory of of Aniou was king. If we must choose one moment of time as French. the fatal moment, we ought to choose the year 1166 rather than the year 1066, the year of the assize of novel disseisin rather than the year of the battle of Hastings. Then it was that the decree went forth which gave to every man dispossessed of his freehold, a remedy to be sought in a royal court, a French-speaking court. Thenceforward the ultimate triumph of French law terms was secure. In all legal matters the French element, the royal element, was the modern, the enlightened, the improving element. The English stock of words is stricken with barrenness, the French stock can grow. The things of the law which have English names are things that are obsolete or obsolescent, sake and soke, wer and wite : — alre^y men hardly know what these words mean\ It is difficult for us ' Even the earliest and purest glossaries of A.-S. law terms, the Expositiones Vooabulorum, prove this ignorance. As to these glossaries, see Hall, Red Book of the Exchequer, vol. iii. Introduction. CH. iii.J England under the Norman Kings. 63 to believe that in the local courts, the suitors, who were for the more part peasants, pleaded their causes and rendered their judgments in French ; still from the thirteenth century we get books of precedents for pleadings in manorial courts which are written in French, while we look in vain for any similar books written in English \ We may suspect that if the villagers themselves did not use French when they assailed each other in the village courts, their pleaders used it for them, and before the end of the thirteenth century the professional pleader might already be found practising before a petty tribunal and speaking the language of Westminster HalP. Then in 1362 a statute, itself written in French, declared that as the French tongue was but little understood, all pleas should be 'pleaded, shown, defended, answered, debated and judged' in the English tongue'. But this came too late. It could not break the Westminster lawyers of theii' settled habit of thinking about law and writing about law in French, and when slowly French gave way before English even as the language of law reports and legal text books, the English to which it yielded was an- English in which every cardinal word was of French origin. How far this process had gone at the end of the thirteenth century we may learn from Robert of Gloucester's historical poem. He sets himself to translate into English verse the Constitutions of Clarendon, and in so doing he uses the terms which we now write as custom, grant, lay fee, service, pleading, assize, judgment, traitor, chattels, felon, patron, advowson, court, plea, purchase, amendment, hold in chief, bailiff, homage, confirm, appeal, debt*. Down to the end of the middle ages a few old English terms perdured which, at least as technical terms, we have since lost ; English ' domes- men' might still ' deem dooms in a moot hall' ; but the number of such terms was small and the blight of archaism was on them^ Meanwhile men had begun to write French and to write French it for legal purposes. Legal instruments in French come to °°'™®" ^• > The Court Baron (Seld. Society). 2 The Court Baron, pp. 38, 42. 8 36Edw.m. Stat. I.e. 15. * Robert of Gloucester, lines 9650-9730. * Wiclif's Translation of the Bible; Matth. vii. 1 'for in what dome je demen, je schuln be demed'; Matth. xxvii. 19 'and while he [Pilat] sat for domesman'; Mark xv. 16 'the porche of the moothalle.' 64 England under the Norman Kings, [bk. i. us but very rarely, if at all, from the twelfth century^ ; they become commoner in the thirteenth and yet commoner in the fourteenth, but on the whole Latin well holds its own in this region until it slowly yields to English, and the instruments that are written in French seldom belong to what we may call the most formal classes ; they are wills rather than deeds, agreements rather than charters of feoffment, writs under the privy seal, not writs under the great seal. From the royal chancery Latin is not to be driven. The example set by the Conqueror when he issued laws in English as well as in Latin was not followed ; Latin is the language for laws and ordinances until the middle of the thirteenth century. Then for one brief moment the two vulgar tongues appear on an equality; in 12.58 Henry III. declared both in French and in English his acceptance of the provisions which were forced upon him in the parliament at Oxford^. But while this English proclamation long remains an unique thing, French forces its way to the front. It wrestles with Latin for the possession of the statute roll and the parliament rolls. By the end of Edward II.'s reign it has fairly won the statute rolP, and is, fast gaining a mastery over the parliament rolls. For about two centuries, from the reign of Edward I. to the reign of Richard III., it is the usual language of the enacted law. Late in the fourteenth century English begins to make a slow and insidious attack. Petitions to parliament are sometimes pre- sented in English, and then in course of time the English petition is sometimes put upon the roll without being translated. However the middle ages are just at an end before the records of the English legislature are written mainly in English, and to this day, as all know, what a lawyer must regard as the most solemn of all our formulas is French — La reine le veult*. 1 The volume of Sarum Charters (Bolls Series), p. 5, contains what at first looks like an exceedingly early example, a French document executed by a bishop of Salisbury and apparently ascribed by a copyist of the fourteenth century to the year 1120. But various questions might be asked about this document and its date. A French charter of Stephen Langton^ which is on the Charter Boll of 10 John is given in facsimile by Hardy, Eot. Cart. p. xli. 2 The proclamations will be found in the Select Charters. ' The exceptions are rather apparent than real; e.g. the Ordinance for Ireland of 31 Edw. III., though on the statute roll, is in the form of letters patent, atid is also on the patent roll. * The transition from French to English statutes seems to occur suddenly at the accession of Bichard III. and to be contemporaneous with a change in CH, III. J England under the Norman Kings. 65 Again in the thirteenth century French slowly supplanted French Latin as the literary language of the law. It is very possible ^^^-'^°°'^^- that the learned Bracton thought about law in Latin; he wrote in Latin, and the matter that he was using, whether he took it from the Summa Azonis or from the plea rolls of the' king's court, was written in Latin. But the need for French text-books was already felt, and before the end of the century this need was being met by the book that we call Britton, by other tracts 1, and by those reports of decided cases which we know as the Year Books. Thenceforward French reigns supreme over such legal literature as there is. We must wait for the last half of the fifteenth century if. we would see English law written about in the English tongue, for the sixteenth century if we would read a technical law-book that was written in English I This digression, which has taken us far away from the Language days of the Norman conquest, may be pardoned. Among the ^°^''"^' most momentous and permanent effects of that great event was its effect on the language of English lawyers, for language is no mere instrument which we can control at will ; it controls us. It is not a small thing that a law-book produced in the England of the thirteenth century will look very like some statement of a French coutume and utterly unlike the Sach- senspiegel, nor is it a small thing that in much later days such foreign influences as will touch our English law will always be much rather French than German, But we have introduced in this place what must have been said either here or elsewhere about our legal language, because we may learn from it that a the method of enrolment. We pass at this date from the 'statute rolls' preserved at the Tower to ' enrolments of Acts of Parliament.' As early as 1386, and it may he earlier — for but few of the extant petitions are printed or dated — a petition to parliament might he written in English (Eot. Pari. iii. 225), and the English words which Henry IV. spoke when he met his first parliament are enrolled (iii. 423); then petitions in English appear on the roll; but on the whole it is not until 1425 or thereabouts that the parliament roll has much English on it. To the very last (1503) the formal parts of the roll are written either in French or in Latin. 1 Court Baron (Seld. Society), p. 11. ^ The honour of being the first books concerning English law that were written in the English language must probably be given to some of Sir John Fortescne's treatises, but they cannot be called legal text-books. Before a deliberate judgment can be passed on the question as to which is our first English text-book, an intricate group of little tracts on pleading etc., some of which may not yet have been printed, must be examined. P. M. 5 66 England under the Norman Kings, [bk. i. concurrence of many causes was requisite to produce some of those effects which are usually ascribed to the simple fact that the Normans conquered England \ Preserva- We may safely say that William did not intend to sweep English away English law and to put Norman law in its stead. On the ^™- contrary he decreed that all men were to have and hold the law of King Edward — that is to say, the old English law— but with certain additions which he, William, had made to it ". So far The Con- as we know he expressly legislated about very few matters. queror's r j o ./ , legislation. He forbad the bishops and archdeacons to hold in the hundred courts pleas touching ecclesiastical discipline ; such pleas were for the future to be judged according to the canons and not according to the law of the hundred; the lay power was to aid the justice of the church, but it was to be well understood that no canon was to be enacted and none of his barons or ministers were to be excommunicated without his leave '. He declared that his peace comprehended all men both English and Normans *. He required from every free man an oath of fealty ^ He established a special protection for the lives of the Frenchmen ; if the slayer of a Frenchman was not produced a heavy fine fell on the hundred in which he was slain. He declared that this special protection did not extend to those Frenchmen who had settled in England during the Confessor's reign °. He defined the procedural rules which were to prevail if a Frenchman accused an Englishman, or an Englishman a Frenchman '. He decreed that the county and hundred courts should meet as of old. He decreed that every free man should have pledges bound to produce him in court *. He forbad that cattle should be sold except in the towns and before three 1 The French that is a literary language in England under Henry III. and Edward I. should not be called 'Norman- French'; Parisian French, the French of the Isle of France, is already its model ; but there is some difference of opinion among philologists as to how far 'Anglo-French' is entitled to be considered as a dialect which has a history of its own. See Behrens in Paul's Grundriss d. German, Philologie, i. 807. To dignify with the name ' Norman- French' the mere 'dog-French' that we find in law reports of the sixteenth century, is ridiculous. 2 Laws of William (Select Charters), u. 7. ^ Leg. WiUelmi, iv. ; Eadmer, Hist. Nov. p. 10. * Laws of William (Select Charters), c. 1. ^ Laws, c. 2; A.-S. Chron. an. 1086; Florence, ii. 19. « Laws, c. 3, 4; Leges Will. i. 22. ' Laws, c. 6; Leges Will. ii. " Laws, c. 7, 8. CH. III.] England under the Norman Kings. Q7 witnesses. He forbad that any man should be sold out of the country. He substituted mutilation for capital punishment^ This may not be an exhaustive list of the laws that he published, nor can we be certain that in any case his very words have come down to us, but we have good reason to believe that in the way of express legislation he did these things and did little more. In the long run by far the most important of these rules will ^^^^^^"^ be that which secures a place in England for the canonical liam'aiaws. jurisprudence. And here we have a good instance of those results which flow from the Norman conquest — a concrete conquest of England by a certain champion of Roman orthodoxy — which are in no wise the natural outcome of the mere fact that Englishmen were subjugated by Normans. For the rest, there are some rules which might have come from a king of the old race, could such a king have been as strong a ruler as William was. He would have had many precedents for attempting to prevent the transfer of stolen goods by prohibit- ing secret sales ^- It was old, if disregarded law, that men were not to be sold over sea'. It was law of Cnut's day that every free man should be in pledge*. A wave of religious sentiment had set against capital punishment ^. "Whether the king could exact an oath of fealty from all men, even fi-om the men of his men, was a question of power rather than of right *. Only two rules drew a distinction between French and English. We may doubt however whether the murder fine had not its origin in the simple principle that the lives of the Normans were to be as well protected in England as the lives of strangers were in Normandy ; at any rate the device of making a district pay if a stranger was murdered in it and the murderer was not produced in court, was not foreign to Frankish nor yet to Scandinavian law. We are also told, though the tale does not come from a very good source, that Cnut had protected his Danes by a fine similar to that which was now to protect the Normans '. Again the procedure in criminal cases is by no 1 Laws, e. 5, 9, 10. 2 The precedents are collected in Schmid, Glossar, s.v. Marhtrecht; see above, p. 36. 3 iEthelred, v. 2 ; Cnut, ii. 3. '' Cnut, ii. 20. 5 ^thelred, v. 3; vi. 10; Cnut, ii. 2. « Edmund, iii. 1. ' Leg. Will. iii. 3 ; Leg. Will. i. 22 ; Leg. Henr. 91 ; Leg. Edw. 15, 16 ; Bracton, f. 134 b. In Swedish laws it is common to find the hundred charged 5—2 68 England under the Norman Kings, [bk. i. means unfavourable to the men of the vanquished race. The Englishman whom a Frenchman accuses has the choice between battle and ordeal. The Englishman who brings an accusation can, if he pleases, compel his French adversary to join battle, otherwise the Frenchman will be able to swear away the charge with oath-helpers 'according to Norman law." Certainly we can not say that the legislator here shows a marked partiality for one class of his subjects. In this matter mere equality would not be equity, for English law has not known the judicial combat, and perhaps the other ordeals have not been much used in Normandy. As it is, the Englishman, whether he be accuser or accused, can always insist on a wager of battle if he pleases ; he is the Norman's peer \ Personal or In different ages and circumstances the pride of a conquer- law. ing race will show itself in very different forms. Now-a-days the victor may regard the conflict as one between civilization and barbarism, or between a high and a low morality, and force his laws upon the vanquished as the best, or the only reasonable laws. Or again he may deliberately set himself to destroy the nationality of his new subjects, to make them forget their old language and their old laws, because these endanger his supremacy. We see something of this kind when Edward I. thrusts the English laws upon Wales. The Welsh laws are with a fine of forty marks (the exact sum that the Conqueror demands) if the manslayer be not produced, more especially if the slain man be a stranger ; Wilda, Strafrecht, 217-218. Some similar liability seems to be indicated by an early capitulary added to the Lex Salica; Hessels, Lex Salioa, p. 408; with which should be compared Leg. Henr. 92 § 8. Henry I. in his Coronation Charter, c. 9, seems to speak as though the murder fine was known to the laga Eadwardi. ' Laws of William, e. 6; Leges Willelmi, ii. Had William said to the Englishman 'If you accuse a Norman, you must adopt the Norman's law and offer battle,' even this could not have been regarded as a tyrannous decree ; it would have been an application of the principle of ' personal law,' which would have looked plausibly equitable. As it is, the Norman has to purge himself even though the Englishman will not fight. He purges himself with ' an unbroken oath,' 'mid unforedan a^e,' 'Sacramento non fracto.' This is a difficult phrase. Apparently a 'broken' or 'breaking' oath is an oath sworn 'in verborum observantiis,' that is to say, an oath which one must swear with a punctilious regard for the very words of the charge which has to be denied. If one makes a slip, the oath or the swearer is said to 'burst' (frangere). Norman law, it seems, is not so exacting as is English law in the matter of verbal accuracy. See Schmid, Gesetze, Glossar, s.v. juramentum pactum. The most luminous passage is Leg. Henr. 64 § 3 'Franoigenae...in verborum observantiis non frangunt.' CH. III.] England mider the Norman Kings. 69 barbarous, barely Christian, and Welshmen must be made into Englishmen '. In older and less politic days all will be other- wise. The conquerors will show their contempt for the conquered by allowing such of them as are not enslaved to live under their old law, which has become a badge of inferiority. The law of the tribe is the birth-right of the men of the tribe, and aliens can have no part or lot in it. Perhaps we should be wrong were we to attribute any large measure of either of these sentiments to the generality of the Norman invaders; but probably they stood nearer to the old and tribal than to the modern and political point of view. A scheme of 'personal laws' would have seemed to them a natural outcome of the conquest. The Norman will proudly retain his Norman law and leave English law to the English. We have seen that in matters of procedure William himself favoured some such scheme, and to this idea of personal law may be due what is apt to look like an act of gross iniquity. Roger of Breteuil and Waltheof conspired against William; Waltheof was condemned to death ; Roger was punished 'according to the law of the Normans ' by disherison and perpetual imprisonment ^ But it was too late for a system of ' personal,' that is of racial laws. Both in France and in England law was becoming territorial, and a king of the English who was but duke of the Normans was interested in obliterating a distinction which stood in his way if he was to be king of England. The rules which mark the distinction between the two races rapidly disappear or are diverted from their original purpose. Murder fines will swell the royal treasure, and early in Henry I.'s reign it is already law that every slain man is a Frenchman unless his Englishry can 1 Register of Abp. Peokham, i. 77 : ' leges Howeli Da quae Decalogo dieuntur in diversis artioulis obviare.' 2 Orderio (ed. Prevost), ii. 264. Stubbs, Const. Hist. i. p. 401, says of Roger's punishment ' The same penalty must have followed if he had been tried by English law.' But under the old English law conspiracy against the king was a capital crime; and Orderio (p. 262) makes Waltheof remark that this is so. Roger, so it seems, is treated as a Norman who has rebelled and levied war against the duke of the Normans. Many examples of earlier and of later date show us that the duke rarely puts a vassal to death for rebellion. We must remember that William is merely duke or count of the Normans, while he is the crowned and anointed king of the English. It may be that under the Conqueror's own ordinance Waltheof should have been, not decapitated, but mutilated; but 'Interdico ne quis oocidatur' does not bind the man who says it. 70 England under the Norman Kings, [bk. i. be proved \ Outside the towns Englishmen seem to have taken to trial by battle very kindly, and already in the first years of the twelfth century William's ordinance about pro- cedure had lost its force". No doubt both William and his sons distrusted the English; even Henry would suffer no Englishman to be abbot or bishop '. No doubt too the English were harshly and at times brutally treated ; but harshness and brutality are one thing, an attempt to rule them by Norman law would have been quite another. Mainte- Indeed the great instance of harsh treatment consists in an En^Ush application of the theory that they have not been conquered by land law. foreign enemies, but having rebelled against one who was de iure king of the English, are to be lawfully punished for their unlawful revolt. Those who fought by Harold's side forfeited their lands, and so of course did those who resisted William after he was crowned These great forfeitures, so far from clearing the way for pure Norman land law, had the effect of bringing even the great Norman barons under English land law. Here a combination might be made of all that was favourable to the duke in the Norman system, with all that was favourable to the king in the English system. William's tenants in chief were to owe him definite quantities of military service; the somewhat vaguely territorialized scheme which had produced Harold's army was to be superseded by a set of determinate contracts, more determinate perhaps j;han any that had as yet been concluded in Normandy. On the other hand the king was going to rigorously exact the old English land tax, the danegeld. With geld in view he achieved the most magnificent of all his feats, the compilation of Domesday Book. It is very possible that he purposed to reform the antiquated and capricious assessment which had come down to him from his ancestors. In the meantime however each Norman baron was to stand in the geld system just where some one Englishman or some definite group of Englishmen had stood. For the purpose of taxation the Frenchman suc- ' Leg. Henr. 92 § 6. '^ In Domeeday Book Englishmen are offering proof by battle; Bigelow, Placita Anglo-Normannioa, 43, 60. The Leges Henrici no longer make any distmotion between the two races in this matter; though they still allow a Frenchman to swear with less accuracy than would be required of an English- man ; Leg. Hen. 64 § 3. ' Eadmer, Hist. Nov. p. 224. CH. iii.J England under the Norman Kings. 71 ceeded to the duties of his English antecessores. But further, what the Frenchman succeeded to was in many cases a superiority over free tenants of the soil. The rights of these tenants might be left to the uncovenanted mercies of their new lord ; but the superiority often consisted to a large degree of rights of a jurisdictional character^ rights of sake and soke, and in this matter the king had an interest. The French lord was not to get other fines and forfeitures than those which his antecessor had received. For a long time after the conquest a serious attempt was made to maintain the old law of sake and soke despite its archaisms. All this made English testimony and English tradition of The great importance ; the relative rights of the various Norman court.^ magnates were known only to Englishmen. Englishmen were mixed up with Frenchmen at the moots and often spoke the decisive word. The aged uEthelric, bishop of Chichester, 'a man very learned in the laws of the land,' was brought by the Conqueror's command to Penenden Heath that he might hear Lanfranc wax eloquent over sake and soke and flymena-fyrm^^. Edric the steersman of the Confessor's ship, and Kineward who had been sheriff of Worcestershire, Siward of Shropshire, Osbern the son of Richard, and Thurkill of Warwickshire were ready to attest the sake and soke which the church of Worcester had over Hamton and Bengeworth ; but the abbot of Evesham dared not face theml Godric, Godwin and Colswein were among the ' approved knights French and English ' who heard the Abbot of Ely's suit at Kentford, and that suit, in which many Normans were concerned, was decided under the king's command by a verdict of English jurors who knew how the disputed lands lay in the time of king Edward '. The Abbot of Abingdon was protected in his possessions by the learning and eloquence of lawyerly English monks, whose arguments were not to be withstood *. On the other hand it is not to be denied that the few legal Norman ideas and institutions which we can confidently describe as Lstftu" tions. » Selden's Badmer, 197; Plao. Anglo-Norm. p. 7. 2 Heming's Cartulary, i. 82 ; Plao. Anglo-Norm. p. 18. 3 Hamilton, Inquisitio Cantabr. pp. xvii, xviii; Plao. Anglo-Norm. p. 22. * Hist. Abingd. ii. 2; Plao. Anglo-Norm. 30: 'sed et alii plures de Anglis causidioi per id tempus in abbatia ista habebantur.' This does not imply the existence of men who are lawyers by profession. 72 England under the Norman Kings, [bk. i. imported from Normandy, were of decisive importance. This is pre-eminently true of the transplanted Prankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury and of a hard and fast formulary system of actions which will be tough enough to resist the attacks of romanism. However the fate of the inquest was still in the balance a century after the conquest; but for the comprehensive ordinances of Henry II., it might have perished in England as it perished in its original home. Whether any definitely new idea is introduced into the English land law is a more dis- putable question that must be reserved for future discussion, but undoubtedly the conquest, the forfeiture, the redistribution of the land gave to the idea of dependent and derivative tenure, tenure in exchange for services, a dominance that it could not obtain elsewhere, and about that idea in its Norman or French shape there clung traditions of the old Frankish world, which in the subjugated country under its foreign kings might bear fruit in a land law of unexampled simplicity, a land law exceptionally favourable to lords in general and to the king in particular. As to the institutes of private law we know much too little to justify dogmatic ascriptions of this to an English and that to a French origin ; and when the French origin may be granted, we are far from being able to say that here is something which the Normans brought with them in the year 1066. Frankish or French influences had been at work in the court of Edward the Confessor ; Frankish influences had been at work in the courts of much earlier kings; after the conquest England lay open for two centuries and more to the latest Parisian fashions. For example, the style of the English chancery — and this in England becomes the model for all legal documents — goes back by one path and another through the Frankish chancery to Rome. But the paths are very various. Some of the Conqueror's diplomata are very like those which Edward and Cnut had issued, and very unlike those of Henry II. We may say if we please that the seal, of which our law made much in the later middle ages, of which it makes much at the present day, is French. But the Confessor had a seal and in all probability but very few of the men who fought by the side of the Norman duke had seals. The chief result of the Norman conquest in the history of law is to be found not so CH. iii.J England under the Norman Kings. 73 much in the subjection of race to race as in the establishment of an exceedingly strong kingship which proves its strength by outliving three disputed successions and crushing a rebellious baronage. During the whole Norman period there was very little Legisia- legislation. We have spoken of the Conqueror's laws. It ^^°^' seems probable that Rufus set the example of granting charters Kufus. of liberties to the people at large. In 1093, sick and in terror of death, he set his seal to some document that has not come down to us. Captives were to be released, debts forgiven, good and holy laws maintained '. Whatever promises he made, he broke. Henry at his coronation, compelled to purchase adherents, Henry i. granted a charter full of valuable and fairly definite conces- sions ". He was going back to his father's ways. The abuses introduced by his brother were to be abolished, abuses in the matter of reliefs, wardships, marriages, murder fines and so forth. Debts and past offences were to be forgiven. The demesne lands of the military tenants were to be free from the danegeld. Above all the laga Eadwardi as amended by William I. was to be restored. Though the king required that concessions similar to those which he made in favour of his barons, should be made by them in favour of their tenants, we can hardly treat this charter as an act of legislation. It is rather a promise that the law disregarded by Rufus shall henceforth be observed. This promise in after times became a valuable precedent, but it could not be enforced against the king, and Henry did not observe it. The other great record of his reign, the Pipe Roll of his thirty-first year, shows that rightfully or wrongfully he was able to extend the rights of the crown beyond the limits that had been assigned to them in 1100, and the steady action of the exchequer under the direction of his able minister, Bishop Roger of Salisbury, evolved a law for the tenants in chief which was perhaps the severest law in Europe'. This was done in silence by the accumulation of precedent upon precedent. For the rest, we 1 Eadmer, Hist. Nov. p. 31-2. -^ Charters of Liberties (Statutes of the Eealm, vol. i.), p. 1; Select Charters; Liebermann, Quadripartitus, p. 150-1. 3 The Pipe EoU of 31 Henry I. was edited by Hunter for the Beoord Com- missioners. We shall hereafter have more than one occasion to remark on the relation that it bears to the charter of 1100. 74: England under the Norman Kings, [bk. i. know that Henry early in his reign issued a writ declaring that the county and hundred courts should be held as they were held in the time of king Edward, straitly enjoining all men to attend them in the ancient fashion whenever royal pleas were to be heard, and in some measure defining the relation of these old tribunals to the feudal courts'- We are told that he' legislated about theft, restoring capital punishment, that he made severe laws against the utterers of bad money, that he prohibited the rapacious exactions of his courtiers, who had made the advent of his peripatetic household a terror to every neighbourhood, that he legislated about measures and made his own arm the standard ell ; but we depend on the chroniclers for our knowledge of these acts, and as yet they are not careful to Stephen, preserve the words of the lawgiver ". Stephen on his accession conceded to his subjects in vague phrase ' all the liberties and good laws which king Henry had given and granted to them, and all the good laws and good customs which they had enjoyed in the time of king Edward'.' Later on he had to promise once more that he would observe 'the good laws aad just and ancient customs, as to murder fines, pleas and other matters,' and that he would extirpate the unjust exactions introduced by the sheriffs and others. More specific promises he had to make to the church, besides the large and dangerous promise that she should be 'free*.' In the ecclesiastical sphere there had been a good deal of definite legislation. With the assent of the king stringent canons had been enacted and enforced ; in particular the rule of celibacy had been imposed upon a somewhat reluctant clergy. It was in the ecclesiastical ' The writ is given in the Select Charters ; see Liebermann, Quadripartitus, p. 165. ^ Legislation in 1108 about theft and coining, Florence, ii. 57; comp. A.-S. Chron. an. 1124, and Foedera, i. 12. Legislation against abuses of royal purveyance and against bad money, Eadmer, Hist. Nov. 192-3; Will. Malmesb. Gesta Eegum, ii. 476. Legislation about measures, Will. Malmesb. Gesta Begum, ii. 487 ; in this last passage it is said that towards the end of his reign Henry inclined rather to pecuniary mulcts than to corporal punishment. The enactment of other rules has been ascribed to Henry merely because they appear in the text-book known as 'Leges Henrioi,' of which hereafter. 3 Charters of Liberties (Statutes of the Eealm, i.), p. 4; Select Charters; Stubbs, Const. Hist. i. 346. * Charters of Liberties, p. 5; Select Charters; Stubbs, Const. Hist. i. 347. As to the date of these charters, see Round, Geoffrey de MandeviUe. CH. III. J ' England under the Norman Kings. 75 council rather than the king's court that the spirit of reforming legislation was once more becoming active ^ The best proof however of the perdurance of the old English The law- law is given by what we may generically call the law-books ^LegesT of the Norman period. The Conqueror had amended and confirmed the laga Eadwardij Henry I. had confirmed the laga Eadwardi and his father's amendments of it. Where then could the law of Edward, that is to say, the law of Edward's time, be found ? No doubt a good deal of it was to be found in the dooms of Cnut and in the yet earlier dooms. But the language in which they were written was unintelligible to Frenchmen and was fast becoming unin- telligible even to Englishmen, for just at this time the English language was undergoing a rapid change. What is more, it was plain that, despite the large words of the Norman kings, the old dooms in their integrity could not fit the facts of the new age. Thus what was wanted was no mere translation of ancient texts but a modernized statement of the old law, a practicable laga Ead/wardi. Divers men in divers parts of the country tried to meet this want. The result of their efforts is a curious and intricate group of writings, which even at the end of the nineteenth century will hardly have been unravelled. We shall here speak very briefly of it, adopting what we believe to be the soundest results of recent criticism ^ In the first place we may put on one side certain documents Genuine which profess to give us, not the old law, but the results of William i. William's legislation, the documents from which we have already extracted our account of his edicts. We probably have in its original form, that of a writ sent into the various counties, the ordinance which severed the ecclesiastical from the temporal courts'. We have in English as well as in Latin the ordinance about criminal accusations brought by men of the one race against men of the other*. Lastly we have a set of ten brief paragraphs dealing with the oath of fealty, the 1 As to the ecclesiastical legislation, see Stubbs, Const. Hist. i. 404. " Dr Liebermann has gradually been restoring the legal literature of this period. Lagam Eadwardi nobis reddit. His forthcoming edition of the Anglo- Saxon and Anglo-Norman laws will probably override some sentences in the following brief summary. 3 This is Leges Willelmi iv. of Thorpe and Sohmid. » This is Leges Willelmi ii. of Thorpe and Schmid. 76 England under the Norman Kings, [bk. i. murder fine, the abolition of capital punishment and the other matters which have already come before us. These ten laws may not have been collected until some time after the ConquQ^ror's death, and it is more than probable that we have not got the words that he used, but the collection seems to have been made early in the twelfth, if not before the end of The the eleventh century, and the result is trustworthy. At a charter of much later date some one tampered with this set of laws, WiUiam I. ij]^|;ej.pQiated new matter into it and threw it into the form of a solemn charter'- The Quad- But we must pass to the attempts which were made to state nparhtus. ^j^^ ^^^^ Eodwardi. In the reign of Henry I. some one set himself to translate the old dooms into Latin. To all seeming he was not an Englishman by race and English was not his natural tongue. He may have been a secular clerk living at Winchester and employed in the king's court or exchequer. He was closely connected by some tie or another with Arch- bishop Gerard of York. We have more than one edition of his work ; these editions can be distinguished from each other by the author's increasing mastery of the English language, though to the end he could perpetrate very bad mistakes. As the work went on he conceived the project of adding to his Latin version of the old dooms three other books- and calling the whole result Liber Quadripartitus. The first book was to contain the old English laws done into Latin ; the second was to contain some important state papers of his own day ; the third was to be about legal procedure ; the fourth about theft. If the two last books were ever "written they have not come down to us. The second book we have. It opens with the coronation charter of Henry I. Then apparently it purposes to give us the documents which relate to the quarrel about the investitures ; but it gradually degenerates into a defence of Archbishop Gerard. The author seems to have been at his 1 The set of ten laws is that printed by Stubbs in his edition of Hoveden, vol. ii. p. 01, and again in the Select Charters. It also appears with some variants in the text of Hoveden's Chronicle, vol. ii. p. 216, for Hoveden inserts it when, under the year 1180, he speaks of Glanvill's appointment to the justioiarship. Liebermann, Quadripartitus, p. 145, mentions the Mss. which give it and says that it was compiled perhaps soon after 1087, probably before 1110, certainly before 1135. The expanded form of it is Leges Willelmi iii. of Thorpe and Schmid. Dr Stubbs, who discusses this in his edition of Hoveden, vol. ii. pp. xxiii-xli, is inclined to ascribe it to Edward I.'s day. CH. III.] England under the Norman Kings. 77 work between the years 1113 and 1118; but as already said he returned to it more than once. Whatever grander projects he may at times have enter- tained, what he has left as a monument of English law is in the main a laborious but not very successful translation of the old dooms. He translated after his fashion most of the dooms that have come down to us, except the very ancient Kentish laws, and he translated a few which have not come down to us save through his hands. He translated for the more part without note or comment what he found, translated honestly if iinintelligently. But he aspired to be more than a mere translator. He put Cnut's code in the forefront ; this was the latest and most authoritative statement of English law ; the earlier dooms — they go back even to Alfred and to Ine — come afterwards as being of less practical value. He does not regard himself as a mere historian or antiquarian^. Closely connected with the Quadripartitus is a far more Leges important book, the so-called Leges Henrici. It seems to have been compiled shortly before the year 1118. After a brief preface it gives us Henry's coronation charter, (this accounts for the name which has unfortunately been given in modern days to the whole book,) and then the author makes a gallant if forlorn attempt to state the law of England. At first sight the outcome seems to be a mere jumble of fragments ; rules brought from the most divers quarters are thrown into a confused heap. But the more closely we examine the book the more thoroughly convinced we shall be that its author has undertaken a serious task in a serious spirit ; he means to state the existing law of the land, to state it in what he thinks to be a rational and even a philosophical form. But the task is utterly beyond his powers. For one thing his Latin is of the worst ; he learnt it in a bad school and it will hardly suffer him to express his meaning ; probably his mother tongue was French. Then the books from which he copies over-weight him ; he can not adhere to any one plan or pursue any one line of thought. Nevertheless he is in earnest, and when he can leave his books alone and succeed in explaining himself, he tells us many things that are of great value. He had a good many books at his command. He made great use of the dooms ' We have here tried to sum up very briefly the results attained by Lieber- mann, Quadripartitus (Halle, 1892). 78 England under the Norman Kings, [bk. i. of Cnut and of some of the older dooms, but unless (this is not impossible) he himself was the author or projector of the Quadripartitus, he seems to have been dependent on the first book of that work for his text of these old English laws. His object being to state the laga Eadwardi as amended by the Conqueror and Henry I., he naturally made great use of this English matter; but he dipped at times into other springs. He had found a source of 'general jurisprudence' in Isidore's Origines. Ecclesiastical causes were no longer subject to na- tive English law ; the Conqueror had handed them over to the canones, and for the canones of the catholic church our author had to look to foreign books, in particular to that compiled by Burchard of Worms. He took a few passages from the venerable Lex Salica, from the Lex Ribuaria, from the Frankish capitularies; we may safely say that had these ancient authorities been regarded by the Normans in England as practicable written law, he would have taken more. He took one little sentence out of an epitome of the West Goth's version of the Theodosian Code'. But the most interesting parts of his work are those which we can not trace to any remoter fount. If they paint English law as a wonderful confusion, they may yet be painting it very correctly, and before we use hard words of him who wrote them, we should remember that he was engaged on an utterly new task, new in England, new in Europe ; he was writing a legal text-book, a text-book of law that was neither Roman nor Canon law. To have thought that a law-book ought to be written was no small exploit in the year 1118'. 1 Leg. Henr. 33 § 4. He cites Liber Theodosianae Legis, but what he really has under that name seems to be the Epitome Aegidii; see Hanel, Lex Bomana Visigothorum, p. 228. This citation has been offered as proof of the preTalenoe of Eoman law in England; but the fact that our author had a Eoman book and took but one sentence from it, is really a strong testimony to the thoroughly un-Eoman character of the English law of his day. 2 The preface can not have been written after 1118, since it treats Queen Matilda as living. The arguments of those who would give a later date to the body of the book seem to be sufficiently answered by Liebermann, Forschungen zur deutsohen Geschiohte (1876), vol. xvi. p. 582. His conclusion is accepted by Stubbs, Const. Hist. i. 538 (ed. 1883). Two mistakes should be avoided. (1) Our author is not forging laws for Henry I. ; the title ' Leges Heurioi' refers only to the coronation charter with which he begins his book. (2) He is not pretending to set forth the laga Eadwardi as it stood in Edward's day; he states it in what he thinks to be its modern and practicable shape. The inference that he was a man of English race has been drawn from a passage, CH. III. J Englatid imder the Norman Kings. 79 The writer of the Leges Henrici is in some sort the champion of West Saxon, or rather of Wessex law. Wessex is in his opinion the head of the realm and in doubtful cases Wessex law should prevail'. Other attempts to state the old law were made elsewhere. In the early years of the twelfth century two Latin translations of Cnut's dooms, besides that con- tained in the Quadripartitus, were made, and in each case the translator tried to be more than a translator ; he borrowed from other Anglo-Saxon documents, some of which have not come down to us, and endeavoured to make his work a practicable law-book. One of the most noticeable features of all these books is that their authors seem to be, at least by adoption and education, men of the dominant, not men of the subject race ; if not Frenchmen by birth, they are Frenchmen by speech ^ At a later date, some forest laws were concocted for Cnut, but to describe these we must use a harsher term ; to all seeming they are the work of a forger, who was inventing a justification for the oppressive claims of those mighty hunters, the Norman kings'. Then we have another document which professes to give us Bilingual the old laws, the laws which King Edward held and which King wmeW. W^illiam granted to the people of England. We have it both in French and in Latin, and to distinguish it from its fellows we may conveniently call it the bilingual code. Its history is ob- scure and has been made the more obscure by contact with the forgeries of the false Ingulf The Latin text is a translation of the French text, though not an exact translation of any version of the French text that has come down to modern times ; but very possibly the French text may have been made from a Latin or from an English original. That we have here no authori- tative code but mere private work will scarcely be disputed. It falls somewhat easily into three parts. The first seems to consist of certain rules of the old English law as they were understood under the Norman kings together with some of 92 § 10, in which he speaks of a French thief resisting capture ' more suo ' ; but he throws such phrases about in a hap-hazard way and his knowledge of the old English language seems to have been but small. 1 Leg. Henr. 70 § 1 ; 87 § 5. 2 These two tracts are Consihatio Cnuti, published by Liebermann at Halle in 1893, and Instituta Cnuti aliorumque Eegum Anglorum, communicated by him to the Eoyal Historical Society in the same year. -' Constitutiones de Foresta, Schmid, p. 318. 80 England under the Norman Kings, [bk. i. the Norman novelties. It is an intelligent and to all seeming a trustworthj' statement. It harmonizes well with the ancient dooms, but is not made up of extracts from them. Its author may have been specially familiar with the Danelaw. The last part of the document is a pretty close translation of certain parts of the code of Cnut. Then between these two parts there come a few articles which betray the influence of Roman law. If the whole document comes from one man, we can not well suppose him to have done his work after the early years of the twelfth century; his statement of the old law seems too good to be of later date. We must further suppose that, having come to the end of the English rules that were known to him as living law, he taxed his memory for other rules and succeeded in remembering some half-dozen general principles which had caught his eye in some Roman book, and that finally, being weary of trying to remember and to define, he took up the code of Cnut and translated part of it. The first section of his work is far from being valueless ; it is one more proof that attempts were being made to state the laga Eadwardi in a rational form. As to the middle section, it shows us how men were helplessly looking about for some general principles of juris- prudence which would deliver them from their practical and intellectual difficulties'. ' The document in question is the Leges Willelmi i. of Thorpe and Sehmid. For the history of the mss. which gave the French version see the article in Quarterly Eeview, No. 67, p. 248, in which Palgrave exposed the Ingulfine forgery, also Liebermann's Ostenglische Gesohichtsquellen. We are deeply indebted to Dr Liebermann for a valuable letter dealing with these 'Leis.' That the French text is the origin of the Latin text is plain from several passages, in particular from c. 45 when compared with Cnut, ii. 24 (the Latinist thinks that voest means 'let him see,' whereas it means 'let him vouch'). On this point see Liebermann, Quadripartitus, p. 54. The Latin version is sometimes exceedingly stupid ; see e.g. the ' idoneos cultores' of c. 31. The text has 52 chapters. From u. 39 onwards we have a translation of Cnut. This, the third section of the work, is preceded by six articles, which when taken together seem to betray Eoman influence :— o. 33, sentence of death on a pregnant woman is to be respited (Dig, 48, 19, 3) ; c. 35, a father may kill his daughter if he finds her committing adultery in his house or his son-in-law's house (Dig. 48, 5, 22); c. 36, a poisoner is to be killed or exiled for ever (Dig. 48, 8, 3 § 5); c. 37, a reminiscence of the lex Bhodia de iactu (Dig. 14, 2); c. 38, the eviction of one co-parcener does not prejudice the rights of the others, being res inter alios acta. To these we may add c. 34, the division of an Inheritance among all the children ; this, unless enfans means sons, can hardly be English of Norman law, and is surrounded by romanesque sentences. Perhaps we ought CH. III.] England under the Norman Kings. 81 Lastly we have a book written in Latin which expressly Leges purports to give us the law of Edward as it was stated to the confes- Conqueror in the fourth year of his reign by juries representing ^°"^- the various parts of Eugland'. However, the purest form in which we have it speaks of what was done in the reign of William Eufus*. It is private work of a bad and untrustworthy kind. It has about it something of the political pamphlet and is adorned with pious legends. The author writes in the interests of the churches, and, it is to be feared, tells lies for them^ He hates the Danes of the past and he hates the Danelaw. According to him William, being himself of Scandi- navian race, was on the point of imposing the Danelaw upon the whole country, but at length was induced by the suppliant jurors to confirm the law of Edward. This, it is explained, was really the law of Edgar, but, from Edgar's death until the accession of the Confessor, law had slumbered in England — thus does this writer strive to blacken the memory of Cnut, the great lawgiver. Unfortunately however the patriotic and ecclesiastical leanings of his book made it the most popular of all the old-law books \ In the thirteenth century it was venerable; even Bracton quoted from it^ And then men added to it other pious, constitutional legends about the good old days when sheriffs were elective and the like. It has gone on doing its bad work down to our own time. It should only be used with extreme caution, for its statements when not sup- ported by other evidence will hardly tell us more than that to place the beginning of the middle section as far back as the very important c. 29 ; for c. 29-32 seem destined to define the position of the English peasants as being similar to that of the Koman coloni. Thus we are brought to the end of 0. 28, where the only now extant ms. of the French version ends. As to the Danish traits of the earher articles, see Steenstrup, Danelag, p. 69, 306-319. The unauthoritative character of the document, if it be taken as a whole, is sufficiently proved by its style; see in particular c. 37, 38; but we shaU not readily beUeve that even the first section of it comes from the Conqueror. As to the character of the French text, this must be left to philologists, but the result of recent discussions seems to be that, though the language has been much modernized by transcribers, it betrays some very ancient traits. 1 This is the Leges Edwardi Confessoris of Thorpe and Schmid. 2 Leges Edwardi Confessoris, c. 11. 3 The exemption from Danegeld of ecclesiastical demesnes, as stated m c. 11, is, to say the least, exceedingly doubtful. See Bound in Domesday Studies, i. 95-6. • Hoveden, ii. 218, takes it up into his chronicle. 5 Bracton, f. 134 b. P.M. ^ 82 England under the Norman Kings, [bk. i. some man of the twelfth century, probably some man of Henry I.'s day, would have liked those statements to be true ^. Character The picture that these law-books set before us is that of an disclosed ancient system which has received a rude shock from without lieges* while within it was rapidly decaying. The men who would state the existing law are compelled to take the old English dooms as the basis for their work, even though they can hardly understand the old English language. The old dooms are written law; they have not been abrogated; they have been confirmed ; other written law there is none or next to none ; Normandy has none ; northern France has none, or none that is not effete. At a pinch one may find something useful in the new science of the canonists, in the aged Lex Salica, ia vague rumours of Eoman law which come from afar. Any rule that looks authoritative and reasonable is welcome ; one may say that it is law because it ought to be law. But in the main one must make the best of the dooms of Cnut and the older dooms. And the difficulty of making much that is good of them is not one that is caused merely by the collision of two races, or by any preference of the Normans for laws that are not English. No doubt in the local courts confusion had been confounded by the influx of conquering Frenchmen-; but there were causes enough of confusion which would have done their work even had there been no ethnical conflict to aid them. Everywhere in western Europe new principles of social and political order were emerging ; new classes were being formed ; the old laws, the only written laws, were becoming obsolete ; the state was taking a new shape. If from the northern France ^ Liebermann, Einleitung in den Dialogus de Soaooario, p. 72-7. It seems quite incredible that Glanvill had anything to do with the making of this book. The difference between the style of these Leges and the style of the treatise ascribed to Glanvill is the difference between darkness and light. The author of the Leges assumes the character of a, patriotic Englishman as against the detested Danes, but Harold is for him an usurper and he himself, if not French by race, seems to have regarded French as his natural tongue (o. 36 § 1) and may have known but little English. The account that he gives of ' the peace of God' (c. 2) seems to take us back rather to French than to English traditions. Liebermann thinks that he must have had access to the library of some cathedral, perhaps that of Coventry. A French translation of the work exists in MS. but has not yet been printed. The story that the Conqueror caused a solemn statement of the laga Eadwardi to be made by juries is not very probable. Had such a statement been made, it would, hke Domesday Book, have been officially preserved, and there would have been no room for such works as the Leges Henrioi and the bilingual code. CH. III. J England under the Norman Kings. 83 or from the Germany of the first years of the twelfth century we could have a law-book, it would not be very simple or elegant or intelligible. As it is, our neighbours have nothing to show between the last of the capitularies and those feudal law-books which stand on a level with our own Glanvill. While the complex process which we call feudalism is trans- muting the world, no one issues laws or writes about law. If in England it is otherwise, this seems to be chiefly due to two causes : — In England the age of the capitularies did not come to an end until the time for the Norman conquest was at hand ; but lately Cnut had legislated on a scale which for the eleventh century must be called magnificent. And then that very collision between two races which makes the law-books disorderly and obscure has made them necessary. The laga Eadwardi is confirmed; even clerks of Norman race wish to know what the laga Eadwardi is. These law-books have, we may say, one main theme. It is Practical a very old theme. An offence, probably some violent offence, Fnlhe™^ has been committed. Who then is to get money, and how ^^s^^- much money, out of the offender ? It is the old theme of wer and wite and hot. But the criminal tariff has become exceed- ingly complex and is breaking down under its own weight. In the first place the old tribal differences, which have become local differences, can not yet be disregarded. A text writer must still start with this, that England is divided between three laws, Wessex law, Mercian law, Danelaw. We must not make light of the few variances between these three laws which are expressly noticed by the books. If in the eleventh century a middle finger is more valuable than a first finger among the men of the Danelaw and less valuable among the men of Wessex, here is a- difierence which would have its equivalent in modem England if the law of Lancashire differed from the law of Yorkshire about the negotiable qualities of a bill of exchange, a difference fruitful of knotty problems. The law of Herefordshire, as settled by Earl William FitzOsbern, was that no knight should have to pay more than seven shillings for any offence '^. Becket asserted even in the king's court that the heaviest amercement known to Kentish law was forty 1 Will. Malm. Gesta Eegum, ii. 314. Malmestury says that m his own day FitzOsbern's rule stiU prevailed. 6—2 84 England under the Norman Kings, [bk. i. shillings ^ But the country was becoming covered with small courts ; every one who . could was acquiring or assuming sake and soke; the courts rose one above the other; the great old tribal customs were breaking up into multitudinous petty customs. This introduced new complexities. We can see that for the writer of the Leges Henrici the grand central problem of the law is the question, Who in the myriad of possible cases has sake and soke, the right to hold a court for the offender and to pocket the profits of jurisdiction ? The claims of the lords, the claims of the church, the claims of the king are adding to the number of the various fines and mulcts that can be exacted, and are often at variance with each other. Let us suppose that a man learned in the law is asked to advise upon a case of homicide. Godwin and Roger met and quarrelled, and Godwin slew Roger. What must be paid ; by whom ; to whom ? Our jurist is not very careful about those psychical elements of the case which might interest us, but on the other hand he requires information about a vast number of particulars which would seem to us trivial. He can not begin to cast up his sum until he has before him some such statement as this : — Godwin was a free ceorl of the Abbot of Ely; Roger, the son of a Norman father, was born in England of an English mother and was a vavassor of Count Alan : the deed was done on the Monday after Septuagesima, in the county of Cambridge on a road which ran between the land which Gerard a Norman knight held of Count Eustace and the land of the Bishop of Lincoln ; this road was not one of the king's highways ; Godwin was pursued by the neighbours into the county of Huntingdon and arrested on the land of the Abbot of Ramsey ; Roger, when the encounter took place, was on his way to the hundred moot ; he has left a widow, a paternal uncle and a maternal aunt. As a matter of fact the result will probably be that Godwin, unable to satisfy the various claims to which his deed has given rise, will be hanged or mutilated. This however is but a slovenly, practical solution of the nice problem, and even if he be hanged, there may be a severe struggle over such poor chattels as he had. The old law has consisted very largely of rules about these matters ; but it is falling to pieces under the pressure of , those new elements which feudalism has brought with it. For 1 Will. FitzStephen, (Materials for Life of Beoket, lii.) p. 62. CH. III. J England under the Norman Kings. 85 a while there must be chaos and ' unlaw' ; every lord may assume what jurisdictional powers he pleases and will be able to find in the complicated tangle of rules some plausible excuse for the assumption. The Normans, hallowed and lay, have thrown themselves with all their native ardour into the warfare of litigation and chicane over rights which have old English names ; ' nullus clericus nisi causidicus \' Only to one quarter can we look hopefully. Above all Custom of local customs rose the custom of the king's court, ' the tremen- court!"^ ^ dous empire of kingly majesty I' Of the law that this court administered we know little, only we may guess that in a certain sense it was equity rather than strict law. On the one hand the royal tribunal can not. have held itself straitly bound by the old English law; the men who sat in it were Frenchmen, few of whom could understand a word of English. On the other hand it must often have happened that the traditional Norman customs would not meet the facts, for a Norman count and a Norman bishop would be quarrelling over the titles of their English antecessores, and producing EngHsh land-books. Besides, the king did not mean that England should be another Normandy, he meant to have at least all the rights that his cousin and predecessor had enjoyed. The jurisprudence of his court, if we may use so grand a phrase, was of necessity a flexible, occasional jurisprudence, dealing with an unprecedented state of affairs, meeting new facts by new expedients, wavering as wavered the balance of power between him and his barons, capable of receiving impressions from without, influenced by the growth of canon law, influenced perhaps by Lombard learning, modern in the midst of antique surroundings. In retrospect it would appear to a statesman of Henry II.'s day as something so unlike the laga Eadwardi, that it must be pronounced distinctively un- 1 This famous phrase comes from a rhetorical passage in which William of Malmesbury is describing the days of Bufus; Gesta Eegum, ii. 369. 'NuUus dives nisi nummularius, nullus- clericus nisi causidicus, nullus presbyter nisi, ut verbo parum Ijatino utar, firmarius.' He has just called Eanulf Plambard 'invietus causidicus.' But, as noticed above, these causidiei were not aU of French race. 2 Leg. Henr. 9 § 9: 'Legis enim Angliae trina est partitio; et ad eandem distantiam supersunt regis placita curiae, quae usus et consuetudines suas una semper immobilitate servat ubique.' Ibid. 6 § 2: 'Legis etiam Anglioae trina est partitio... praeter hoc tremendum regiae maiestatis titislamus (?) imperium.' justice. 86 England under the Norman Kings, [bk. i. English and therefore distinctively Norman, and Norman in a sense it was'. It was not a jurisprudence that had been transplanted from Normandy; but it had been developed by a court composed of Frenchmen to meet cases in which French- men were concerned ; the language in which men spoke it was French ; and in the end, so far as it dealt with merely private rights, it would closely resemble a French coutume. Eoyai The future was to make the jurisprudence of the king's court by far the most important element in the law of England, but we can hardly say that it was this during the reigns of the Norman kings. In the main that court was a court only for the great men and the great causes. It is true that these foreign kings did not allow their justiciary powers to be limited by any of those hedges which might have grown up in an unconquered country and fconfined the scope of royal justice to certain particular fields. The list of the ' pleas of the crown' was long, disorderly, elastic^ ; the king could send a trusted baron or prelate to preside in the county courts ; he could evoke causes into his own court'. But evocatory writs must be paid for and they were not to be had as matters of course. The local courts, communal and seignorial, were the ordinary tribunals for ordinary causes; the king's justice was still extraordinary and even the pleas of the crown were for the more part heard by the sheriffs in the shiremoots*. Then again the king's court was not in permanent session. Under the two Williams the name curia Regis seems to be borne only by those great assemblages that collect round the king thrice a year when he wears his ' Dialogus, lib. i. c. xvi.: 'Bex Willelmus...deorevit subieotum sibi populum iuri scripto legibusque subicere. Propositis igitur legibus Anglicanis secundum tripartitam earum distinotlonem, hoc est Merohenelage, Denelage, West- saxenelage, quasdam reprobavit, quasdam autem approbaus, illas transmarinas Neustriae leges, quae ad reghi pacem effioacisimae videbautur, adieoit.' ' Leges Henrioi, o. 10. " Early instances of the king's missi presiding in the local courts are these : the Bishop of Coutances presides at the famous session on Penenden Heath : Plac. Anglo-Norm. p. 7; he and others preside over the county court of Worcestershire : Ibid. p. 17 ; he and others preside over a combined moot of the eastern counties: Ibid. p. 24; Lanfranc presides at Bury over a combined moot of nine shires : Memorials of S. Edmund's Abbey, i. 65. The payments 'pro recto' recorded on the Pipe Eoll of Henry I. were probably payments made for evocatory writs ; see Plaeita, 140-2. * Apparently as a general rule the sheriffs hear the pleas of the crown, but the profits go to the king and are not, unless some special compact has been made, covered by the ferms of the counties; Leg. Henr. o. 10 § 3. CH. III.] England under the Norman Kings. 87 crown, on the great festivals of the church. It was in such assem- blages that the king's justice was done under his own eye, and no doubt he got his way ; still it was not for him to make the judgments of his courts Under Henry I. something that is more like a permanent tribunal, a group of justiciars presided over by a chief justiciar, becomes apparent. Twice a year this group, taking the name of 'the exchequer,' sat round the chequered table, received the royal revenue, audited the sheriifs' accounts and did incidental justice. From time to time some of its members would be sent through the counties to hear the pleas of the crown, and litigants who were great men began to find it worth their while to bring their cases before this powerful tribunal. We can not say that these justiciars were professionally learned in English law: but the king chose for the work trusty barons and able clerks, and some of these clerks, besides having long experience as financiers and administrators, must have known at least a little of the new canonical jurisprudence^- But for all this, when Henry died little had yet been done towards centralizing in one small body of learned men the whole work of justice. And then a disputed succession to the throne, a quarrel between the king and the officers of his exchequer, could impair, or for a while destroy, all such concentration as there was. In the woful days of Stephen the future of English law looks very uncertain ; if English law survives at all, it may break into a hundred local customs, and if it does so, the ultimate triumph of Roman law is assured^. 1 Even Eufus in his rage respects this rule. Anselm is before the court ; the magnates are reluctant to condemn him. ' Take heed to yourselves,' cries the king, 'for by God's face if you will not condemn him as I wish, I will condemn you.' Eadmer, Hist. Nov. 62. ' We have a life-like, though perhaps not an impartial, report of the trial of William of S. Calais, bishop of Durham. There is a keen argument between the defendant, who knows his canon law, and Lanfranc, the great Lombardist, who presides over the, court; but the barons are not silent, and Hugh de Beaumont gives judgment. See Symeon of Durham, i. 170. A little later Bishop William takes a leading part in what may perhaps be called the trial of Anselm; Eadmer, Hist. Nov. 60-2. Eanulf Plambard and Roger of Salisbury must have been very able men. 3 Aa to the king's court and exchequer, see Stubbs, Const. Hist. c. xi., and Gneist, Geschichte, § 10. CHAPTER IV. ROMAN AND CANON LAW. Contact of In any case the restoration of order after the anarchy of ^jSUsh Stephen's reign and the accession to the throne of a prince Roman and -v^rlio would treat England as the buttress of a great continental law. empire must have induced a critical period in the history of English law. But we must add that in any case the middle of the twelfth century would hare been critical. Even had Harold held his own, had his sons and grandsons succeeded him as peaceful and conservative English kings, their rule must have come into contact with the claims of the cosmo- politan but Roman church, and must have been influenced, if only in the way of repulsion, by the growth of the civil and canon law. Of all the centuries the twelfth is the most legal. In no other age, since the classical days of Roman law, has so large a part of the sum total of intellectual endeavour been devoted to jurisprudence. Roman law On the continent of Europe Roman law had never perished bavarian ^^ gone utterly out of use^. After the barbarian invasions it inTaBions. -^yas still the personal law of the conquered provincials and their offspring. The churches also, being Roman institutions, ' lived Roman law 'I In course of time the ' system of personal laws' gave way to territorial laws, and where the men who lived Roman law stood thick, their law took root in the soil. 1 What is here said of Eoman law is founded chiefly on Savigny, Gesohiohte des Eomischen Bechts, and Conrat, Gesohichte der Quellen des Bomischen Bechts. ^ Brunner, Deutsche Eeohtsgesehiohte, i. 269. CH. I V.J Roman and Canon Law. 89 But it had become barbarized and vulgarized, a customary Roman law to be discovered rather in current usage than in written books. In the year 506 the Roman subjects of the Visigothic kingdom were provided with a great law-book, the so-called Breviary of Alaric or Lex Romana Visigothorum, consisting of excerpts from the Theodosian Code, some later Novels, a version of the Institutes of Gains and a few other texts ; the greater part of the work was equipped with a continuous gloss or 'interpretation. From time to time in the following centuries an epitome of this Breviary was made, some small manual of practice was compiled or some ancient manu- script was glossed. Still it seems not too much to say that the current Roman law had almost ceased to be Roman, and that the Digest, the one book likely to stimulate men towards a restoration of the classical jurisprudence, was but very little known. In the first years of the twelfth century came a great Revival of change. Irnerius began to read and teach the Digest at ia^°'° Bologna. Very soon a powerful school had formed itself around his successors. The fame of 'the four doctors,' Bulgarus, Martinus, Jacobus, Hugo, had gone out into all lands ; the works of Placentinus were copied at Peterborough. From every comer of western Europe students flocked to Bologna. It was as if a new gospel had been revealed. Before the end of the century complaints were loud that theology was neglected, that the liberal arts were despised, that Seius and Titius had driven Aristotle and Plato from the schools, that men would learn law and nothing but law^. This enthusiasm for the new learning was not soon spent ; it was not spent until in the middle of the thirteenth century Accursius had summed up its results in the Glossa Ordinaria and Azo of Bologna had taught Bracton what a law-book should be. The keenest minds of the age had set to work on the Cosmopoii- classical Roman texts and they were inspired by a genuine o™EoSSf love of knowledge. Still they were far from regarding their i*^- study as mere historical research, indeed for a critical exami- nation of ancient history they were but very ill prepared. The Roman law was for them living law. Its claim to live and to rule was intimately connected with the continuity of 1 The Lex Eomana Visigothorum was edited by Hanel in 1849. 2 See the passages collected by Holland, Eng. Hist. Bev. vi. 147-8. 90 Roman and Canon Law. [bk. i. the empire. A vast part, if not the whole, of the civilized world owed obedience to the Caesar for the time being. The German Henries and Fredericks were the successors of Augustus and the Antonines ; the laws of their ancestors had not been repealed and therefore were in force. Even in those kingdoms in which it was impossible as a matter of fact to press the claims of a German prince, the king might be theoretically regarded as holding the place of an emperor. Our own Henry I. was he not Gloriosus Caesar Henricus' ? But, such theories apart,' the Roman law demanded reverence, if not obedience, as the due of its own intrinsic merits. It was divinely reasonable ; it was a law that rejoiced the heart and gave wisdom unto the simple. Growth of Another law was coming into being. From humble begin- ■ nings the canon law had grown into a mighty system I Already it asserted its right to stand beside the civil law as a second great body of jurisprudence ; and yet it was more than juris- prudence. The civil law might be the law of earth, jus soli; here was the law of heaven, jus poli. From of old the Christian churches had made some efforts to dissuade their members from going to law : — the faithful should lay their differences before their pastors. The Christian emperors encouraged the bishops to act as arbitrators and endowed them with a certain jurisdictional control over their subordinate officers. Slowly from these germs, and from the cure of souls and the power of excommunication, a true jurisdiction had been developed. This process we can not here trace even in outline, but it was accompanied by the evolution of a stately body of law. The canons established by the great councils held in the east during the fourth and fifth centuries may be regarded as the original nucleus of this body. They were spread abroad throughout the Christian world and by their side were placed the decretal epistles of the popes. Near the end of the fifth century a great collection of conciliar resolutions and papal letters was made by Dionysius ' Exiguus,' a monk of Rome. It circulated widely and was from time to time enlarged and revised. Some version of this work it ' Quadripartitus, p. 149 ; Leg. Henr. preface. '■' The following paragraph is founded chiefly on an article by Hinsohius in Holtzendorff's Enoyklopadie and Tardif, Histoire des sources du droit canonique; the two lectures by Stubbs on Canon Law in England have also been used. CH. I V.J Roman and Canon Law. 91 probably was that Archbishop Theodore produced at the council of Hertford in 673'. Then out of the darkness of the ninth century there looms a book which was to control the history of mankind for a long time to come — a new edition of this ecclesiastical literature into which have been foisted sixty decretals ascribed to the popes of the first four centuries. The forger called himself Isidorus Mercator. Many guesses have been made as to his name and home, but no more seems surely known than that he did his work in Gaul about the very middle of the ninth century. The false decretals are elaborate mosaics made up out of phrases from the Bible; the fathers, genuine canons, genuine decretals, the West Goth's Eoman law-book ; but all these materials, wherever collected, are so arranged as to establish a few great principles — the grandeur and super-human origin of ecclesiastical power, the sacro-sanctity of the persons and the property of bishops, the supremacy of the bishop of Rome. In particular the Pseudo- Isidore repeatedly and emphatically insists that a bishop despoiled of his see need answer no accusation whatever until he has been restored. The maxim ' Spoliatus ante omnia debet restitui ' is established, the exceptio spolii is founded^. Brought into collision with the claims of temporal power, the learning of canons and decretals ceased to be a mere part of theology and began to wear the air of jurisprudence. Sentences out of the Roman law-books found themselves side by side with texts from the Bible. Isidore's forgeries were received as genuine ; ampler collections were made. The names of Regino of Prum, who wrote early in the tenth, of Burchard of Worms, who wrote early in the eleventh, of Ivo of Chartres, who died early in the twelfth century, stand out among those of the compilers. A chronological arrangement of materials gave way to a logical and legal arrangement, and the compiler would sometimes weave his quotations together with notes and speculations of his own, would go near to writing something that we should call a text-book. 1 Haddan and Stublos, Counoila, iii. 119. 2 The Deoretales Pseudo-Isidorianae were edited by Hinschius in 1863 ; see also Conrat, Geschichte der QueUen des B. B., i. 310. According to a now prevalent opinion the forger's main object was not that of extoUing the see of Borne, but that of asserting the rights of bishops (1) as against the civil power, (2) as against their metropolitans. 92 Roman and Canon Law. [bk. I. Gratiau. The Decretals. But the fame of earlier labourers was eclipsed by that of Gratian^ A monk of Bologna, that city which was the centre of the new Roman jurisprudence, he published between the years 1139 and 1142 (the work used to be ascribed to a somewhat later date) a book which he called Goncordantia discordantium canonum, but which was soon to become for all mankind simply the Becretum Gratiani, or yet more simply the Becretum'. It is a great law-book. The spirit which animated its author wa^ not that of a theologian, not that of an ecclesiastical ruler, but that of a lawyer. One large section of his work is taken up with the discussion of hypothetical cases (causae) ; he states the ^ various questions of law (quaestiones) that are involved in these - cases ; he endeavours to answer those questions by sorting and ' weighing the various ' authorities,' to use our English word, which bear upon them. These authorities consist of canons new and old, decretals new and old, including of course the Isidorian forgeries, principles of Roman law, passages fromi the fathers and the Bible. The Decretum soon became an authori- tative text-book and the canonist seldom went behind it.. All the same it never became 'enacted law'; the canonist had for it rather that reverence which English lawyers have paid to Coke upon Littleton than that utter submission which is due to every clause of a statute. , ^Gratian's work was no solitary phenomenon ; he was the head of a school, a school of lawyers well grounded in Roman law, many of them doctors utriusque iuris, who brought to bear upon the Decretum and the subse- quent decretals the same methods that they employed upon Code and Digest. Legists and decretists alike looked to Italy for their masters. The newer system was even more cosmopo- litan than the older ; the sway of the Roman church was wider than that of the Roman empire. Gratian, Rufinus, Johannes Faventinus, Pillius, Hostiensis — these names we read in English books, to say nothing of those great canonists who attain to the papal throne, of Alexander III., Innocent III., Gregory IX., Innocent IV. Gratian had collected decretals down to the year 1139. But the time had now come when the popes were beginning to pour .out decretals for the whole of western Christendom in 1 For the matter of this paragraph we have used besides the books cited above, Schulte, Geschichte der Quellen des Cauonischeu Bechts. ^ As to the date see Sohulte, i. 48. CH. IV.] Roman and Canon Law. 93 great abundance. Under Alexander III. and Innocent III. the flow was rapid indeed. From time to time compilations of these were made {compilationes antiquae) and Englishmen in Italy took part in this work^ ; but they were all set aside by a grand collection published by Gregory IX. in 1234. This was an authoritative statute book ; all the decretals of a general import that had not been received into it were thereby repealed, and every sentence, every rubric that it contained was law. It comprised five books. In 1298 Boniface VIII. added to these the ' Sext,' the Liber Sextus, a collection of those decretals issued since the Gregorian codification, which were to be in force for the futtire. Another collection of decretals known as the Clementines (they had proceeded from Clement V.) was added in 1317 and in 1500 the Corpus Juris Canonici was completed by yet another collection — this had no statutory authority — known as the Extravagants ; but by this time canon law had seen its best days. We must yet say a few more words of its vigorous maturity^- It was a wonderful system. The whole of western Europe The was subject to the jurisdiction of one tribunal of last resort, the sy^emf Roman curia. Appeals to it were encouraged by all manner of means, appeals at almost every stage of almost every pro- ceeding*. But the pope was far more than the president of a court of appeal. Very frequently the courts Christian which did justice in England were courts which were acting under his supervision and carrying out his written instructions. A very large part, and by far the most permanently important part, of the ecclesiastical litigation that went on in this country, came before English prelates who were sitting not as English prelates, not as 'judges ordinary,' but as mere delegates of the pope 1 Sohulte, i. 84, 85, 88, 187-9. Among the compilations whieli have been preserved are those of Alan and Gilbert, who seem to have been Englishmen, and that of Johannes Walensis, i.e. John the Welshman. 2 It may be well to explain that after the eompUatiou of Gratian's work, the decretals not contained in it were known as decretales extravagantes, i.e. quae vagabantur extra decretum. Even after they had been collected by Gregory they were cited as Extra or X. Thus Extra de rescriptis c. ex parte or e. 2. X de rescript. 1. 3 is a reference to the Gregorian collection. The Sext is referred to by in vi'» ; the Clementines by Clem. ; while the collection of Extravagants published in 1500 consists partly of Extravagantes Johannis xxii. {Extrav. Joh. XXII.), partly of Extravagantes Communes {Extrav. Gomm.). 3 We speak of the middle of the twelfth century; before its end even the popes perceive that limits must be set to the appeal. 94 Roman and Canon Law. [kk. i. commissioned to hear and determine this or that particular case'. Bracton indeed treats the pope as the ordinary judge of every Englishman and the only ordinary judge whose powers are unlimited ^ When once the supreme pontiff has obtained seisin of a cause, that cause proceeds under his directions. He bids two or three English prelates try it, but he also tells them by what rules they are to try it, he teaches them, corrects them, reproves them, expresses in a fatherly way his surprise at their amazing ignorance of law. Very many of the decretals are mandates issued to these judges delegate, mandates which deal with particular cases. Others are answers to questions of law addressed to the pope by English or other prelates. These mandates and these answers were of the utmost importance, not merely to the parties immediately concerned, but to all the faithful, for the canonist would treat as law in other eases the rules that were thus laid down. His science was to a great degree a science of ' case law,' and yet not of case law as we now understand it, for the 'dicta' rather than the 'decisions' of the popes were law ; indeed when the decretals were collected, the particular facts of the cases to which they had reference, the species facti, were usually omitted as of no value. The pope enjoyed a power of declaring law to which but very wide and very vague limits could be set. Each separate church might have its customs, but there was a itis commune, a common law, of the universal church. In the view of the canonist, any special rules of the church of England have hardly a wider scope, hardly a less dependent place, than have the customs of Kent or the by-laws of London in the eye of the English lawyer. During the time with which we are now dealing, the twelfth and thirteenth centuries, no English canonist attempts to write down the law of the English church, for the English church has very little law save the law of the church Catholic and Roman. When in the next century John de Athona wrote a commentary on the constitutions made by certain papal legates in England, — those which Cardinal Otho ^ Bethmann HoUweg, Civil-Prozees, vi. 125: the Oxford canonist, William of Drogheda, takes no notice of the ordinary jurisdiction, but treats a petition for a papal rescript as the normal beginning of every action. ' Bracton, f. 412, ' In fine notandum de iurisdictione maiorum et minorum. Et imprimis siout dominus Papa in spiritualibus super omnibus habeat ordi- nariam iurisdictionem...et sunt qui sub eis ordinariam habent in multis, sed non ita meram aicut Papa vel Bex.' CH. IV. J Roman and Canon Law. 95 decreed in 1237, those which Cardinal Ottohon decreed in 1268, — ^he treated them as part and parcel of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hosti- ensis, Durantis and the rest. On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with an amount of litigation far larger than that which the mere size ,or wealth of our country would have led us to expect. Open the Gregorian collection where we will, we see the pope declaring law for English cases. The title 'De filiis presby- terorum ordiaandis vel non' has eighteen chapters; nine of these are addressed to English prelates. The title 'De iure patro- natus' has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his way to Rome, he was like to be told by the pope that his doctrine of episcopal rights was the product of EngUsh beer, and might have to carry home with him a rescript which would give the English bishops a sound lesson in the law of prescription^ The relation between the two great systems was in the Keiation of rr,, 1111 1 -i Canon to twelfth century very close. The canon law had borrowed its Eoman form, its language, its spirit, and many a maxim from the civil law. Of course, however, it had to deal with many institutions which had never come within the ken of the classical Roman lawyers, or had been treated by them in a manner which the Christian church could not approve. Thus, for example, the lagL-jof—marrjage and divorce, a topic which the church had made her own, had to be rewritten. Some elements which we^ may call Germanic had made their way into the ecclesiastical system ; in penal causes the proof by compurgation was adopted, and wherever the testamentary executor may come from, he does not come from the Roman law. Still the canonist's debt to the civilian was a heavy one; he had borrowed, for instance, the greater part of his law of procedure, and he was ever ready to eke out Gratian by an appeal to Justinian. In Richard I.'s day the monks of Canterbury went to law with the archbishop ; 1 Chron. Abb. de Evesham, p. 189, ' Pater aanote nos didioimua in scholis, et haeo est opinio magistrorum nostrorum, quod non ourrit praescriptio contra iura episoopalia.' Bt dominus papa, ' Certe et tu et magistri tui multum bibiatis de cerevisia AngUoana quando haeo didicistia.' The result ia found in c. 15, X. 2. 26. 96 Roman and Canon Law. [bk. i. a statement of their case has come down to us ; probably it was drawn up by some Italian ; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop's projected college of canons would be an injury to his cathedral monastery'. In the thirteenth century the canon law began to think that she could shift for herself and even to give herself airs of superiority. The bishops of Rome began to discourage a system which had only too much to say about the grandeur of emperors and never a word of popes. If they could have had their way, the civil law would have been but the modest hand-maid of the canon law^ But in the days of our King Stephen the imperial mother and her papal daughter were still good enough friends. It was hand in hand that they entered England. Eomanand The_ history of law in England, and even the history of ia™in EngKsh law, could not but_be influenced by them. Their England, action however hardly becomes visible until the middle of the twelfth century is at hand. If the compiler of the Leges Henrici adopts a sentence which can be ultimately traced to the Theodosian Code through epitomes and interpretations, if the compiler of the Leges Willelmi seems to have heard a few Roman maxims, all this belongs to the pre-scientific era^. If William of Malmesbury, when copying a history of the Roman emperors, introduces into his work a curious version of the Breviary of Alaric, he is playing the part of the historian, not of the jurist*. It is remarkable enough that within a century after Lanfranc's death, within much less than a century after the death of Irnerius, a well informed Norman abbot ascribed to them jointly the credit of discovering Justinian's books at Bologna^ The story is untrue, for Lanfranc had left Italy long before Irnerius began to teach ; still his name would never have been coupled with that of Irnerius _had he ^ EpiBtolae Cantuarieuses, p. 520. 2 See below, p. 102. 3 See above, pp. 78, 80. " Malmesbury's connexion with this work is discussed by Dr Stubbs in his introduction to the Gesta Eegum, i. cxxxi ff. The work itself is described by Hanel, Lex Eomana Visigotborura, p. Iv. See also Conrat, Gescbichte der Quellen des E. E., i. 232. " Eobert de Torigny (ed. Howlett), p. 25 ; on this see Savigny, Gesohichte, kap. 27, § 8. CH. IV.] Roman and Canon Law. 97 known no Roman law. Lanfranc's pupil Ivo of Chartres, the great canonist, knew much Roman law^ and becomes of importance in English history ; it was his legal mind that schemed the concordat between Henry I. and Anselml More to the point is it that from Burchard of Worms or some other canonist the author of our Leges Henrici had borrowed many a passage while as yet the Decretum Gratiani was unwritten. Yet more to the point that already in the reign of Rufus, William of St Calais, bishop of Durham, when accused of treason in the king's court, shows that he has the Pseudo- Isidorian doctrines at his fingers' ends, demands a canonical tribunal, formally pleads an exceptio spolii, appeals to Rome, and even — for so it would seem — brings a book of canon law into court'. When Stephen made his ill advised attack on Roger of Salisbury and the other bishops, once more the exeeptio spolii was pleaded, again the demand for a canonical tribunal was urged, and the king himself appealed to the pope*. The time when Gratian was at work on the Decretum, whin the four doctors were flourishing at Bologna, was a time at which the English king had come into violent collision with the prelates of the church and those prelates were but ill agreed among themselves. At this time it was that Archbishop Theobald, at the Vacanus. instance perhaps of his clerk Thomas, — Thomas who was himself to be chancellor, archbishop and martyr, — Thomas who had studied law at Bologna and had sat, it may be, at the feet of Gratian^ — imported from Italy one Vacarius, a learned Lombard lawyer'. It would seem that Theobald desired to 1 Bob. de Torigny, p. 100; Savigny, Geschiclite, kap. 15, § 106; Conrat, Geschiohte, i. 378. 2 Liebermann, Anselm von Canterbury, p. 41. 3 Monastioon, i. 244-250 : ' Christianam legem quam hie soriptam habeo testem invoco.' * William of Malmesbnry, Gesta Eegnm, ii. 553. The legate says 'Eex itaque faciat quod etiam in forensibus iudieiis legitimum est fieri, ut revestiat episcopos de rebus suis; alioquin iure gentium dissaisiti non placitabunt.' The king's appeal occurs on the next page. 5 WilUam Fitz Stephen, Materials, iii. 17. « Thomas's activity in this matter is made probable by Gervase of Canter- bury, ii. 384. This passage, together with the words of Eobert of Torigny (ed. Hewlett), p. 159, and of John of Salisbury, Polycraticus, lib. viii. cap. 22, contains what is known of the legal career of Vacarius. These passages are conveniently collected by Holland, Collectanea of Oxford Historical Society, ii. 139. P. M. 7 98 Roman and Canon Law. [bk. i. have the help of a trained legist in the struggle in which he was engaged with Stephen's brother, Henry bishop of Winchester, who, to the prejudice of the rights of Canterbury, had obtained the office of papal legate. That Vacarius taught the civil law there can be no doubt ; a considerable body of students looked up to him as their magister and reverently received his glosses'. . That he taught in the archbishop's household, which was then fuU of men who were to become illustrious in church and state, i s highly probable. That he also taught at Oxford, where a school was just beginning to form itself, is not so plain, but is asserted by one who ought not to have made a mistake about such a matter^- That Stephen endeavoured to silence him and to extirpate the books of civil and canon law we are told upon good authority*. Nor will such a proceeding on the king's part seem strange. We do not indeed know that Vacarius had paid much attention to the canon law, but he taught a deep reverence for papal decretals*, his patron Theobald was a supporter of the Empress, and one reason for bringing him hither very probably was that he might advance, or teach others how to advance, those claims of the church which Stephen at some moments of his vacillating career would not admit. We are told also, and may well believe, that the royal edict was ineffectual. ' Further we know that Vacarius wrote a book and have some reason for ascribing this to the year 1149 ; he wrote it for the use of poor students who could not afford to purchase the Roman texts. That book still exists. It might be described as a condensed version of Justinian's Code illustrated by large extracts from the Digest'. It is a thoroughly academic book, as purely academic as would be any lectures on Roman law delivered now-a-days in an English university. In what of it has been printed we can see no practical hints, no allusions to English affairs °. Its author, ^ Wenck, Magister Vacarius, p. 134. ^ Gervase of Canterbury, loc. cit. ' John Salisb. Polycr. loc. cit. This matter is discussed by Wenck, pp. 28-41. * Wenck, pp. 140-2. * Large portions of the work were published in 1820 by Wenck, Magister Vacarius (Leipzig). Savigny discusses it, Geschiohte, kap. 22, § 174 ; kap. 36, § 124. There is a ms. of it at Worcester, of whioh no full account has yet been given. * There is just enough to show that some of those who glossed the work had English cases in their minds; e.g. Wenck, p. 189 'Argumentum pro deoano Eboracensi.' CH. IV.] Roman and Canon Law. 99 unless he had a namesake, seems to have spent the rest of a long life in England, to have held some preferment in the northern prOvii^ce, to have been attached by some tie to Becket's rival Archbishop Koger of York, to have acted as Roger's compurgator when a charge of complicity in the murder of St Thomas was to be disproved*. We do not know that he took any part in the great controversy between Henry and Becket ; if he did, we must look for him rather among the king's than among the archbishop's legal advisers. Perhaps he lived until 1198 or 1200''; if so, he must have been a very young man when Theobald fetched him from Italy I ^ From Stephen's reign onwards the proofs that Roman and Legistsand canon law are being studied in England become more frequent, in Eng- The letters of Archbishop Theobald's secretary John of Salis- '''"'^■ bury — one of the foremost scholars of the age — are full of allusions to both laws; many of these occur in relation to English ecclesiastical law-suits of which John is forwarding reports to the pope. In his Polycraticus he has given a sketch of civil procedure which has drawn high praise from Savigny*. The epistles ascribed to Peter of Blois, archdeacon of Bath and of London, are stuffed with juristic conceits. Giraldus Cambrensis is by way of lamenting that literature is being obliterated by law, while students of law neglect its elements ^ Maxims out of the Institutes or the Digest become part of the" ' Alexander HI. addressed a letter, o. 2. X. 4. 7, to the Abbot of Fountains and Master Vacarius; on this see Wenck, pp. 41-52. In 1171 the pope names Vaearius as one of Roger's oompnrgators ; Materials for Life of Becket, vii. 498-501 ; Migne, Patrol, oxe. 407. A deed described in Lay Folks Mass Book, Early Engl. Text Soc. No. 71, p. xlvii, shows him in Normandy in Eoger's suite. See also Cart. Eiev. p. 83: in 1185 a compromise is made before him and the prior of Bridlington. ^ Hoveden, iv. 75, and the note by Stubbs. ' In general as to Vacarius see Wenck's book; Stubbs, Const. Hist. § 147; Stubbs, Lectures, 120, 137, 141, 301-3 ; Holland's article in Bng. Hist. Review, vi. 243-4. The date of Vaoarius's advent is very uncertain. Robert of Torigny seems to say, not that he came hither in 1149, but that in that year he wrote his book, and Gervase of Canterbury, by connecting his coming with the dispute about the legation, would incline us to believe that he was brought to England some years before 1149. Bishop Henry's legation seems to have expired at latest on the accession to the papacy of Lucius II. in 1144 (Stubbs, Const. Hist. § 115). It is hardly likely that a man who acted as a papal commissioner in 1198, was already a famous lawyer in 1143. * Geschiohte,.kap. 36, § 131. 5 Opera, ii. 348 ; iv. 3. 7- 7—2 100 Roman and Canon Law. [bk. i. stock in trade of the polite letter writer, the moralist, and the historian. Manuscripts are being copied. Abbot Benedict of Peterborough has in his monastery , the whole Corpus luris Civilis in two volumes, besides various parts of it, the Summa of Placentinus and the Summa — this, it is said, may be the work of a Norman or an Englishman — that is known as ' Olim' ; he has also the Decretum, a collection of Decretals and the canonical text-books of Rufinus and Joannes Faventinus^. Thomas Marlborough, who became monk, prior, abbot at Evesham, had taught law at Oxford and, for so it would seem, at Exeter, and he brought with him to his monastery a collection of books utriusque iuris^- It is plain that a flourishing school of Roman and canon law had grown up at Oxford'. Scientific But the Italians had been first in the field and easily work in . . - , . . -r-v • i <. i -in England, mamtamed their pre-eminence. During the rest of the middle ages hardly a man acquires the highest fame as legist or decretist who is not Italian, if not by birth, at least by education. There are some signs of original work in England. The scholars of Vacarius glossed his glosses. Some manuals of procedure have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century *. Of these the most interesting to us is one which has been attri- buted to no less a man than William Loagchamp, A clerk of Norman race, he became for some years, as all know. King Richard's viceroy and the true ruler of England. Even after his great fall he was still the king's chancellor ". Another lawyer who for a while controls the destiny of our land is Cardinal Guala Bicchieri*, but it were needless to say that he was no Englishman. Probably that one of our countrymen who gains 1 Chronicles of Bobert of Swafham, ed. Sparke, pp. 96-8. As to the Summa called ' Olim ' (it begins ' Olim edebatur '), see Caillemer, Le droit civil dans les provinces anglo-normandes, p. 32. 2 Chron. Evesham, p. 267. 3 Holland, Bng. Hist. Bev. vi. 247. * Caillemer, op. oit. pp. 15-50. ' Caillemer, op. cit. p. 50, prints the ' Practica Legum et Decretorum edita a Magistro W. de Longo Campo.' Longchamp's career is described at length by Stubbs in the Introduction to Hoveden, vol. iii. A manual known as the Ordo ludioiarius of the Bamberg ms. is attributed to England; it was published by Sohulte in the Proceedings of the Vienna Academy (1872), vol. 70, p. 235. " Chron. Evesham, p. 191 'dominum Gualam.,,. inter cardinales in iure oivili peritissimum.' CH. IV.] Roman and Canon Law. lOl most fame in the cosmopolitan study is Ricardus Anglicus'. He has been identified with Richard le Poore, who became dean of Salisbury, bishop of Chichester, of Salisbury, of Durham ; but his celebrity seems to have been gained in Italy before his preferment to these high places^ In the next century the most prominent name is that of William of Drogheda who taught at Oxford and wrote a Srnnma Aurea'. But the Roman Catholicism — we need no better term — of the canon law made against the development of national schools. All the great cases, the causes cdlebres, went to Rome and the English litigant, if prudent and wealthy, secured the services of the best Italian advocates. In their dispute with the archbishop, the monks of Canterbury retain the illustrious Pillius and the illustrious Ugolino who will be Gregory IX.* Thomas Marl- borough, prior of Evesham, despite his having taught law at Oxford, attended the lectures of Azo, ' lord of all the lords of law,' before he trusted himself to plead the cause of his abbey at the threshold of the Apostles ^ It was not from any English civilian but from Azo himself that our Bracton borrowed. Henry III. kept in his pay Henry of Susa, who was going to be 1 Sohulte, op. cit. i. 183; Caillemer, op. cit. 33-4; Bethmaun-HoUweg, vi. 105. 2 He seems however to have been at one time the pupil of Stephen Langton and a fellow scholar with Thomas Marlborough, who got his law at Oxford and became a monk at Evesham: Chron. Evesham, p. 232. Schulte and Caillemer give too late a date for his elevation to the deanery of Salisbury; he became dean in 1197 : Ann. Monast. ii. 65 ; Hardy's Le Neve, ii. 613. The identification of him with Eicardus Anglious may require reconsideration. Schulte has collected a few particulars about English students and teachers at Bologna — i. 151, a certain David, canon of St Paul's, who was a master there in 1163 or thereabouts — i. 188, Gilbert, Alan, Johannes Walensis— i. 211, Elias Anglicus . As to Master David, some entertaining stories are to be found in Spicilegium Liberianum, p. 603. 3 Schulte, ii. 113; Bethmaun-HoUweg, Civil Prozess, vi. 123-131; Delisle, Litt&ature latine, p. 68. Matthew Paris, Chron. Maj. iv. 423, places William's death in or shortly before 1245. Hollweg, who gives a sketch of William's work, says that it is not very creditable to the Oxford school. It seems to be a mere book of practice. There are two Mss. of it at Caius College, Cambridge: we may hope to see it edited. * Epist. Cantuar. pp. 68, 471, 476, 506. 5 Chron. Evesham, pp. 147, 153, 168. Marlborough went to Bologna by the advice of the pope (Innocent III.) and Cardinal Ugolino. He employed as his counsel Magister Merandus Hispanus, who had argued the king's case against the Canterbury monks, and Bertrand, a knight of Pavia, who as a lawyer was second to none but Azo. 102 Roman and Canon Law. [bk.. i. cardinal bishop of Ostia, aad who, for all men who read the law of the church, will be simply ' Hostiensisi.' Edward I. had Franciscus Accursii at his side^ The great ' prizes of the profession' were beyond the reach of the Englishman; 'the leaders of the profession ' whose books he had to read, whose opinions he had to quote, were Italians. The As to Roman law, it led to nothing. For a while in their England" enthusiasm men might be content to study for its own sake this finds little great mass of human wisdom, of almost superhuman wisdom, so it must have seemed to them. But it soon became plain that in England there would be no court administering Roman law, unless it were the court of a learned university. And then, as already said, the church, or at any rate a powerful party in the English church, began to look askance at the civilian. Theology was to' be protected against law. Beneficed clerks were no longer to study the secular jurisprudence. In the year 1219 Honorius III. forbad that the civil law should be taught in the university of Paris', and when we read how in 1234 our Henry III. ordained that the leges should no longer be taught in the London schools — probably this refers to the schools of St Paul's Cathedral — it is by no means certain that we ought not to connect this with a movement in favour of ecclesiastical reform, rather than with that ' Nolumus leges Angliae mutare ' which the barons were about to utter*. Matthew Paris has handed down to us what purports to be the text of a papal 1 Mat. Par. Chron. Maj. iv. 33, 286, 851-3; Sohulte, ii. 123. 2 Stubbs, Const.' Hist. § 179; Saviguy, Geschichte, kap. 43, § 102. ' This by the bull Swper speculam, ot which divers portions are to be found in the Decretales Gregorii, in particular, c. 28, X. 5. 33 ; Denifle, Chartalarium Universitatis Parisiensis, i. 80. * Eot. CI. 19 Hen. HI. m. 16; Selden, Diss, ad Fletam, p. 525. Dr Stubbs, Lectures, p. 306, interprets the ' leges ' of this writ as though it indicated the canon law ; but surely it far more probably bears its usual sense, the sense in which it can be contrasted with ' deoreta ' or ' eanoues.' The question why this bolt should be launched against the 'laws' in London while they are spared at Oxford, is not unlike the much discussed question why Honorius struck at the laws in Paris and only in Paris. The answer may be that these London schools were primarily theological schools, and that the university of Paris was the great theological school of the world. Or again it seems possible that Henry is protecting the Oxford law school against competition. That the 'leges' of this writ mean English law we can not believe; we shall hear nothing of English law being taught for a very long time to come. See Clark, Cam- bridge Legal Studies, p. 40. CH. iv.j Roman and Canon Law. 103 bull which goes much further^ Innocent IV., perhaps the greatest lawyer among all the popes, is supposed to decree in the year 1254 that in France, England, Scotland, Wales and Hungary — in short almost everywhere save in Italy and Ger- many — the imperial laws shall not be read, unless the kings of those countries will have it otherwise. In those countries, he is made to say, the causes oi the laity are decided not by the imperial laws but by customs, while for ecclesiastical causes the constitutions of the holy fathers will suffice. Strong reasons have been shown for the condemnation of this would-be bull as a forgery, or as the manifesto of English divines who will make believe that the pope has done what he ought to do^ Genuine or spurious, it is an instructive document, for it tells us that in England the civilian is between two fires. The best churchmen do not love him ; ecclesiastical reformers are coming to the aid of national conservatism. This did not destroy the study of Roman law. Oxford and Cambridge gave degrees as well in the civil as in the canon law'. The one considerable work pro- duced by an English canonist of the fourteenth century, the gloss of John de Athona on the legatine constitutions, is full of references to Code and Digest. But the civilian, if he was not a canonist, had no wide field open to him in England. He might become a diplomatist; there was always a call in the royal chancery for a few men who would be ready to draw up treaties and state-papers touching international affairs, and to meet foreign lawyers on their own ground. Nor must it be forgotten that so long as the English king was endeavouring to govern Guienne from Westminster, he was obliged to keep in his employ men who could write fluently about such romanesque institutions as emphyteusis, 'active and passive testamenti /actio' and the like^ for Guienne was in theory a country of the written law. But except as a diplomatist, a chancery clerk, or a teacher, the civilian would find little to do in England ; the court of admiralty, the courts of the universities, 1 Mat. Par. Chron. Maj. vi. 293-5. ' Digard, La papaut^ et I'^tude du droit romain, Bibliothgciue de I'Eoole des chartes, 1890, vol. 51, p. 381. Denifle, Chartularium Universitatis Parisi- ensis, i. 261, had already questioned the authenticity of this bull. Perhaps it was originally no worse than a university squib; however Matthew Paris believed in it. 3 Stubbs, Lectures, 310-2 ; Clark, Cambridge Legal Studies, 42-59. ' See e.g. Parliament Roll of 33 Edward I. ed. Maitland, pp. 331, 335. 104 Roman and Canon Lav). [bk.. i. even when they had come into existence, could not provide employment for many practitioners. ^ The history of Roman and canon law as studied and administered in England deserves to be written at length. We have said of it but enough to serve our own immediate purpose; for we have now to note in the first place that a large tract of the whole field of law was made over to the ecclesiastical courts and their canonical jurisprudence, and secondly that this canonical jurisprudence affected the development of our English temporal law. The pro- The demarcation of the true province of ecclesiastical law ecolesiasti- ^^^ "^^ ^^^7 ^^'^^ J ^* ^^^ "^^^ *° ^® accomplished in England, in callaw. France, in Germany, without prolonged struggles'. The Con- queror, when he ordained that ' the episcopal laws' were not to be ■ administered as of old in the hundred courts, left many questions open. During the first half of the twelfth century the claims of the church were growing, and the duty of asserting them passed into the hands of men who were not mere theologians but expert lawyers. Then, as all know, came the great quarrel between Henry and Becket. In the Consti- tutions of Clarendon (1164) the king offered to the prelates a written treaty, a treaty which, so he said, embodied the 'customs' of his ancestors, more especially of his grandfather. Becket after some hesitation rejected the constitutions. The dispute waxed hot; certain of the customs were condemned by the pope. ; The murder followed and then Henry was compelled to ' renounce, though in carefully guarded terms, all his innova- tions''. But his own assertion all along had been that he was no innovator: and though the honours and dishonours of the famous contest may be divided, the king was left in possession of the greater part of the field of battle. At two points he had been beaten: — the clerk suspected of felony could not be sentenced by, though he might be accused before, a lay court ; appeals to Rome could not be prohibited, though in practice the king could when he chose do much to impede them. Elsewhere Henry had maintained his ground and from his time onwards the lay courts, rather than the spiritual courts, are the aggressors ' Brunner, D. E. G. §96; Fournier, Lea offioialitfis au moyen4ge; Luohaire, Manuel des institutions fran^aises, p. 121. ^ Gesta Henrici (Benedictus), i. 33. CH. IV.] Roman and Canon Law. 105 and the victors in almost every contest. About many particulars we shall have to speak in other parts of our work ; here we may take a brief survey of the province, the large province, which the courts Christian retain as their own. The church claims cognizance of a cause for one of two reasons : — either because the matter in dispute is of an ecclesi- astical or spiritual kind, or because the persons concerned in it, or some of them, are specially subject to the ecclesiastical jurisdiction. _ -- I. (a) In the first place she claims an exclusive cognizance Matters of of all affairs that can fairly be called matters of ecclesiastical cai eco- economy, the whole law of ecclesiastical status, the ordination """"y- and degradation of clerks, the consecration of bishops, all purely spiritual functions such as the celebration of divine service, also the regulation of ecclesiastical corporations and the administra- tion of their revenues. In this region the one limit set to her claims is the principle asserted by the state that the rights of the patrons (advocati) of churches are temporal rights, that the advowson {advocatio ecclesiae) is temporal property ^ Henry II. maintained, Becket controverted, Alexander condemned this prin- ' ciple ; but despite papal condemnation, it seems to have been steadily upheld by the king's court, which prohibited the courts Christian from interfering with the right of patronage"; and very soon we may find two prelates in litigation about an advowson before the royal justices^ In this instance the clergy seem to have given way easily ; both parties were at one in treating the advowson as a profitable, vendible right. As regards other mat- ters falling under the present head there was little debate ; but it behoves us to notice that our temporal lawyers were thus excluded from some very fruitful fields of jurisprudence; The growth of our law of corporations is very slow, because our courts have nothing to do with the internal affairs of convents and chapters — the only institutions, that is, which seem to require treatment as fictitious persons ; and we might have come by a law of trusts at an early period if the justices had been bound to deal with the administration of revenues given to prelates or 1 Const. Clareud. c. 1. ^ 2 Glanvill, iv. 12-14. 3 See e.g. Select Civil Pleas, i. pi. 215. Braotou's Note Book, pi. 551: in 1231 the bishop of London, in a suit for an advowson, accepts a wager of battle. 106 Roman and Canon Law. [bk. 1. Church property. Ecclesias- tical dues. Matrimo- nial causes. convents as a provision for particular purposes, such as the relief of the poor or the maintenance of fabrics ^ (5) The ecclesiastical tribunals would much like to claim the decision of all causes which in any way concern those lands that have been given to a church, at all events if given by way of ' alms.' Henry himself was willing to make what may seem to us a large concession at this point. If both parties agreed that the land had been given in alms, litigation about it was to proceed in the ecclesiastical forum ; if they did not agree, then the preliminary question which would decide where the case should be tried was to be settled by the verdict of a jury. Here he was successful and much more than successful ; the courts of his successors insisted on their exclusive right to adjudge all questions relating to the possession or ownership of land, albeit given in alms; the spiritual judges could in this province do no more than excommunicate for sacrilege one who invaded soil that had been devoted to God in the strictest sense by being consecrated^ (c) The courts Christian claimed the exaction of spiritual dues, tithes, mortuaries, oblations, pensions. The justice of the claim was not contested, but it was limited by the rule that a question about the title to the advowson is for the lay court. From century to century there was a border warfare over tithes between the two sets of lawyers, and from time to time some curious compromises were framed'. (d) More important is it for us to notice that the church claims marriage, divorce, and consequently legitimacy, as themes of ecclesiastical jurisdiction. This claim was not contested by Henry II. or by his successors. However the church in the twelfth century became definitely committed to the doctrine that children who were born out of wedlock are legitimated by the marriage of their parents^ As regards the iuheritance ' To a small extent the lay courts were enabled to interfere with such matters by the doctrine that the services due from a 'tenant by divine service' could be exacted by distress or action; but on the whole the administration of pious gifts was left to the courts Christian. " Constitutions of Clarendon, o. 9. We shall deal with this matter hereafter when we speak of tenure by frank almoin. "Mat. Par. Chron. Maj. iv. 614; Bractou, f. 4u2 b, 403; Cireu nspecte Agatis (Statutes, i. 101), u. 3; Articuli Cleri (Stat. i. 171), c. 1. * This was definitely settled by a mandate addressed by Alexander III. to the bishop of Exeter, which appears in the Gregorian collection as c. 6, X. 4. 17. CH. IV. j Roman and Canon Law. 107 causes. of laud, a matter which lay outside the spiritual sphere, the king's courts would not accept this rule^ The clergy endeavoured to persuade the lay power to bring its law into harmony with the law of the church and then in the year 1236, as all know, the barons replied with one voice that they would not change the law of England^. Thenceforward the king's justices assumed the right to send to a jury the question whether a person was born before or after the marriage of his parents, and it might well fall out that a man legitimate enough to be ordained or (it may be) to succeed to the chattels of his father, would be a bastard incapable of inheriting land either from father or from mother. But except when this particular question about the retroactive force of marriage arose, it was for the ecclesiastical court to decide the question of legitimacy, and, if this arose incidentally in the course of a temporal suit, it was sent for trial to the bishop and concluded by his certificate^. (e) Yet more important to us at the present day was Testamen- another claim of the church, which has had the effect of'^^se splitting our English law of property into two halves. She claimed as her own the testament, that ' last will ' of a dead man which was intimately connected with his last confession. She claimed not merely to pronounce on the validity of wills, but also to interpret them, and also to regulate the doings of her creature the testamentary executor, whom she succeeded in placing alongside of the English heir. In the course of the thirteenth century the executor gradually becomes a prominent figure in the king's courts ; he there sues the testator's debtors and is sued by his creditors; 'but the legatees' who claim under the will must seek their remedies in the courts of the church. In this instance the common lawyers seem to have suffered the canonists to gradually aalarge a territory which was to be very valuable in the future. As a general rule land could not be given by testament, and our king's court was concentrating its attention on land and crime. Meanwhile the church extends ' Glanvill, vii. 15. 2 Stat. Merton, o. 9; Letters of Bobert Grosseteste, pp. 76, 95; Braoton'a Note Book, i. pp. lOi-116. ' It is for the eocleaiastioal court to decide 'an issue of general bastardy,' while 'an issue of special bastardy' is tried by a jury. ' Is this man a bastard?' — ^that is an issue of general bastardy. 'Is this man a bastard because born before the marriage of his parents?' — that is an issue of special bastardy. Slackstone, Comm. iii. 335. faith. 108 Roman and Canon Law. [bk. i. her boundaries' and at last succeeds in compassing the whole law of succession to movables ah intestato. The process whereby this was accomplished is very obscure ; we hope to speak of it upon another occasion; but here we may say that a notion prevailed that intestacy, if it be not exactly a sin'^, is often God's judgment on sin, for so closely is the last will connected with the last confession, that to die intestate is to die un- confessed'. And so 'the law of personal property' falls apart from ' the law of real property ' and we at this day are suffering the consequences. Pledge of (/) With great difficulty were the courts Christian pre- vented from appropriating a vast region in the province of contract. They claimed to enforce — at the very least by spiritual censures — all promises made by oath, or by ' pledge of faith.' The man who pledges his faith, pawns his Christianity, puts his hopes of salvation in the hand of another'. Henry II. asserted his jurisdiction over such cases^; Becket claimed at least a concurrent jurisdiction for the church °. Henry was victorious ; from his day onwards the royal court was always ready to prohibit ecclesiastical judges from entertaining a charge of breach of faith, unless indeed both parties to the contract were clerks, or unless the subject-matter of the promise was something that lay outside the jurisdiction of the temporal forum'. All the same, there can be no doubt that during the whole of the next century the courts Christian were busy with breaches of faith. Very often a contractor expressly placed himself under their power and renounced all right to a pro- hibition. Such a renunciation was not fully effectual, for the right to issue the prohibition was the right of the king not of the contractor; still, as Bracton explains, a man commits an * Glanvill, vii. 7; xii. 17; Harvard Law Review, iii. 168; this matter will be discussed at grfeater length when we speak of the history of wills. ^ Bracton, f. 60 b 'nuUam enim meretur poenam quis, quamvis deoedat intestatus.' 3 See for instance Mat. Par. Chron. Maj. iv. 552: 'Arohidiaoonus Norhamto- nensis, morbo repentino correptus indecenter et improvide obisset intestatua.' See also Ducange s. v. intestatio. ■* Cart. Eiev. p. 164: 'et primum haec omnia saoramento firmavit, deinde christianitatem in manu mea qua se obsidem dedit etc' '> Const. Clarend. e. 15. 6 Hoveden, i. 238, 254. ? Glanvill, x. 1-3; Braoton'a Note Book, pi. 50, 670, 683, 1361, 1464, 1671; Bracton, f. 406 b. We shall return to the laesiofidei hereafter. CH. IV. J Roman and Canon Law. 109 enormous sin by seeking a prohibition when he has promised not to seek one and may very properly be sent to prison*. In practice ecclesiastical judges were quite willing to run the risk of being prohibited ; indeed the law of the church compelled them to run this risk. A certain jurisdiction over marriage settlements of money or movable goods, the church had as part of its jurisdiction over marriage^. ig) There remains the indefinitely wide claim to correct Correction the sinner for his soul's health, to set him some corporeal penance. The temporal courts put a limit to this claim by asserting that if the sin be also an offence which they can punish, the spiritual judges are not to meddle with it. There are some few exceptions ; the bodies of the clergy are doubly protected ; you may be put to penance for laying violent hands upon a clerk besides being imprisoned for the breach of the peace and having to pay damages for the trespass^ Even however though this rule be maintained, much may be done for the correction of sinners. The whole province of sexual morality is annexed by the church; she punishes fornication, adultery, incest, and these offences are not punished by the king's court, though the old local courts are still exacting legerwites and childwites, fines for fornication. So also the province of de- famation is made over to the spiritual jurisdiction, for though the local courts entertain actions for slander and libel, the king's court, for some reason or another, has no punishment for the defamer, no relief for the defamed^ Usury is treated as a mere sin while the usurer is living ; but if he dies in his sin, the king seizes his goods^ Simony naturally belongs to the church courts ; perjury, not always well distinguished from the breach of a promissory oath, would come before them upon many occa- sions, though with perjured jurors the royal court could deal. Of heresy we need as yet say nothing, for England had hardly been troubled by heretics. No doubt the church courts were quite prepared to deal with heresy should it raise its head, and 1 Braoton, f. 401 b, 402. 2 The regular form of the prohibition relating to movables forbad the eoclesiastioal judge to meddle with chattels 'quae non sunt de testamento vel matrimonio.' 3 Ciroumspecte Agatis (Statutes, i. 101), c. 6, 11. " Bolls of Parliament, i. 133 (1295) : 'et non sit usitatum in regno isto placi- tare in curia Eegis de defamationibus.' Ciroumspecte Agatis, c. 12. ' 5 (Jlanvill, vii. 17. no Roman and Canon Law. [bk. i. had they called upon the state to burn or otherwise punish the heretic, it is not likely that they would. have called in vain'. Jurisdic- II. (a) But the church had opened a second parallel. She clerks. claimed cognizance of all personal causes, criminal or civil, in which a clerk was the accused or the defendant. The story of ' the benefit of clergy ' we shall have to tell elsewhere. On the whole, save in one particular, the state had its way. The clerk accused of felony was to be tried in the ecclesiastical court and was to suffer no other punishment than that which the ecclesi- astical court could inflict; it could inflict life-long imprisonment. But whatever may have been the case in the twelfth century, the clerk of the thirteenth can be tried and punished for all his minor offences as though he were a layman. Then again in Bracton's day the clerk has no privilege when he is defendant in a civil action, though in the past clerks have been allowed to sue each other for debts and the like in court Christian^. It should be well understood that ' the benefit of clergy ' as allowed by English law was but a small part of that general immunity from lay justice that had been claimed for the ordained by popes and canonists^ Miserabiies H)) On the continent of Europe the church often claimed personae. • o i • 7 -r as her own the suits 01 the miserabiies personae, as they were called, of widows and orphans^. Of any such claim we hear little or nothing in England, though some tradition of it may affect the later history of the Court of Chancery. In England it is the king who sets feudal rules aside in order that summary justice may be done to the widows The sphere Large then is the province of ecclesiastical law ; but it law. might have been much larger. Despite the many advantages that Henry II. gave to his antagonists by his rages and his furies, he handed down to his successors a larger field of purely ' Stubbs, Appendix to Eeport of Beelesiastioal Courts Commission, p. 52. Maitland, The Deacon and the Jewess, L. Q. E. ii. 153. ' Bracton's Note Book, pi. 719, 808; compare Braoton, f. 401b. ^ Gratian at the end of e. 47, C. 11, qu. 1, summed up the master thus 'Ex his omnibus datur intelligi, quod clericus ad publica iudicia nee in ciyili, nee in criminali causa est produeendus, nisi forte oivilem oausam episcopus decidere noluerit, vel in criminali sui honoris cingulo eum nudaverit. ' * Schroder, Lehrbueh der deutsohen Eechtsgesohichte, 571 ; Foumier, Offlcialit^s, 79. " Glanvill, vi. 14. The widow who has received no part of her dower may go straight to the king's court. CH. IV.] Roman and Canon Law. Ill temporal justice than was to be found elsewhere'. Even in Normandy Richard had to consign to the ecclesiastical forum all questions about broken oath or broken faith^. But we are here concerned with the fact that from the middle of the thirteenth century onwards a very large mass of litigation, of litigation too which in no very strict sense can be called ecclesiastical, was handed over to tribunals which administered the canon law, tribunals which were often constituted by a papal rescript, and from which there lay an appeal to the Roman curia. The canon law begins to affect our temporal law sometimes influence by way of repulsion, sometimes by way of attraction. It is in upon Eng- opposition to ' the canons and Roman laws^' that (if we may so ''^•*'*^- speak) our English law becomes conscious of its own existence. In the Constitutions of Clarendon we have our first authoritative redaction of hitherto unwritten customs. If our 'consuetu- dines' are to prevail against the ' leges' and ' canones,' they must be accurately formulated and set in writing. The 'Nolumus leges Angliae mutare' of 1236 is no announcement of an abstract conservatism ; our English rule is to be maintained in opposi- tion to the canons. Repulsion begets emulation. Glanvill will have it that the English laws, at least those made by the king with the counsel of his barons, are ' leges,' just as much ' leges ' as any that are studied at Bologna*. But this is not all. In later days, in the fourteenth and fifteenth centuries, the canon law can be administered in England without influencing our common law. The king's justices, the practitioners in the king's court, are in all probability profoundly ignorant of the Digest and the Decretals. The learned doctors who practise before the episcopal tribunals are not so ignorant of the temporal law, for it sets limits to their sphere of action ; still they would not profess themselves masters of it. But in the twelfth, and even in the thirteenth, century, this was not so. Henry's greatest, his most lasting triumph in the legal field was this, that he made the prelates of the church his justices^ Nothing could be less true than that he quarrelled with the whole mass of bishops ' Schroder, p. 571 ; Foumier, pp. 64-94. 2 Mat. Par. Chron. Maj. ii. 368. 2 Glanvill, vii. 15 ' secundum canones et leges Eomanas.' * Glanvill, Prologus; Bracton, f. 1. 5 See the famous passage in Diceto, i. 434. 112 Roman and Canon Law. [bk. i. and clergy. No doubt his bestowal of the great places of the church upon men who had earned, or were to earn, them by fiscal and justiciary labours, has an evil side as well as a good. We are here concerned with its good side. English law was 'administered by the ablest, the best educated, men in the realm; nor only that, it was administered by the self-same men who were ' the judges ordinary' of the church's courts, men who were bound to be, at least in some measure, learned in the canon law. At one moment Henry has three bishops for his ' archjusticiars'.' The climax is reached in Richard's reign. We can then see the king's court as it sits day by day. Often enough it was composed of the archbishop of Canterbury, two other bishops, two or three archdeacons, two or three ordained clerks who were going to be bishops and but two or three laymenl The majority of its members might at any time be ' called upon to hear ecclesiastical causes and learn the lessons in ~tew that were addressed to them in papal rescripts. Black- stone's picture of a nation divided into two parties, 'the bishops and clergy' on the one side contending for their foreign jurisprudence, 'the nobility and the laity' on the other side adhering ' with equal pertinacity to the old common law ' is not a-true oneL. fit is by 'popish clergymen' that our English dommon law is converted from a rude mass of customs into an articulate system, and when the ' popish clergymen,' yielding at \ength to the pope's commands, no longer sit as the principal justices of the king's court, the golden age of the common law is over. Very characteristic of our thirteenth century is it that when there is talk of legitimation per subsequens matrimonium, , the champion of the common law is a canon of St Paul's, William Raleigh, who is going to be a bishop and somewhat of a martyr, whose name is to be joined with the names of Anselm and Beckett These royal clerks have two sides ; they are clerks, but they are royal. It would not surprise us to discover that ' Dioeto, i. 435. " Thus on 16th July, 1195, the court consists of Hubert Walter, abp. Cant., Godfrey Lucy, bp. of Winchester, Eichard FitzNeal, bp. of London (author of the Dialogue), Gilbert Glanville, bp. of Eochester (a distinguished scholar), Eichard Earre, archd. Ely, Ealph Foliot, archd. Hereford, William of Chimelli, arohd. Eiohmond, William of Ste Mfere I'i^glise, afterwards bp. of London, Geoffrey FitzPeter, Simon Pateshull, Osbert FitzHervy, Eiohard Heriet. a Bl. Comm. i. 19. * Bob. Grosseteste, Epist. pp. 76, 95. OH. IV.] Roman and Canon Law. 113 Martin Pateshull, justice of the Bench, had prohibited Martin Pateshull, archdeacon of Norfolk, from meddling with lay fee. But as archdeacon he was bound to have a decent acquaintance with the canon law and as justice he could not forget what he knew as archdeacon. In the second half of Richard's reign^^ Hubert Walter, the chief justiciar of England, who sat day by day at Westminster, was also the archbishop of Canterbury. A spiteful tongue has told us that he was no great Latinist, that he could be guilty of ' Tres sunt species cautionis, fidei- iussoriam, iuratoriam, pignoraticiam' and the like^ still though we can suppose that this great primate of all England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino. We attribute to these clerical justices in general no more English than a superficial acquaintance with the canon law, an acquaint- iSrtere^by ance with its main principles and with its methods. But this tfct*^'*^ much we must attribute to them and it means a great deal. Let us conceive a man, whose notion of law and the logic of law is that which is displayed in the Leges Henrici, coming upon a glossed version of the Decretum, or still better upon some Summa such as that attributed to William of Longchamp. His whole conception of what a law-book, what a judgment should be, of how men should state law and argue about law, must undergo a radical change. Thus viewed from one poinib~] the effect produced on English law by its contact with the | romano-canonical system seems immeasurable, or measurable , only by the almost infinite distance that divides Glan¥;iirs/ treatise from the Leges Henrici. Law, it may be said, is one thing and the expression of Taw^ture of another. But we can hardly even in thought divorce the ni£aUn° matter of law from its form. Old traditional rules must lose fl'jence. their old meaning so soon as men attempt to weave them into a reasonable system. The English law, more especially the English law of civil procedure, was rationalized under the influence of the canon law. Here and there we may note a plain case in which the one system has borrowed a whole set of ' Giraldus Cambrensis, ii. 344-5, iii. 27-8. Giraldus afterwards retracted his charges; see i. 426. P. M. 8 114 Roman and Canon Law. [bk. i. rules from the other. Thus Glanvill tells us that the ' excep- tions/ or as we should say the ' challenges/ which can be made against jurors are the same as the exceptions which can be made against witnesses in the courts Christian ^ Here a whole chapter of law, which in the hands of the canonists is already becoming a bulky chapter, is boiTowed. Such instances however are rare and this instance is typical and instructive. Our English jurors are already very unlike, and are becoming more unlike, the canonical ' testes,' and they will not be made any more like the canonical 'testes' by the application to them of these rules about exceptions or challenges, Another mass of rules is borrowed. The elementary outlines of the science of pleading can only be expressed in terms familiar to civilians and canonists. In any case we must begin by saying ' of exceptions (special pleas) some are dilatory, while others are peremptory^' But in our lay courts a distinctive form is given to these rules by the mode of trial which prevails there, the trial by jury, and before long the canonist will hardly be able to understand the English lawyer's doctrine of special pleas. The assize of novel disseisin is suggested by the actio spolii; but it is not the actio spolii. Our English law shows itself strong enough to assimilate foreign materials, to convert them to its own use. Of any wholesale ' reception ' of Roman law there is no danger. From the day at Clarendon onwards it is plain that we have many ' consuetudines ' which must be maintained in the teeth of 'leges' and 'canones.' The king's justices, more especially those of them who are clerks, become interested in the maintenance of a system that is all their own. From time to time the more learned among them will try to attain a foreign, an Italian, standard of accuracy and elegance ; they will borrow terms and definitions, they mil occasionally borrow rules ; but there must be no dictation from without. The imperial laws as such have no rights in England; the canon law has its proper province and should know its place. 1 Glanv. ii. 12. 2 Will, de Longo Campo (Caillemer, p. 25) 'Sunt enim exoeptiones aliae perpetuae, aliae dUatoriae.' Bract, f. 399 b ' Exoeptionum quaedam sunt dilatoriae, quaedam peremptoriae.' This can be traced to Inst. 4. 13. 8. CHAPTEE V. THE AGE OP GLANVILL. The reign of Henry II. is of supreme importance in the The work history of our common law and its importance is due to the n. ^™^ action of the central power, to great reforms ordained by the king'- Still it was rather as an organizer and governor than as a legislator that Henry was active. He published no code ; we may even doubt whether he laid down any one new rule which we should call a rule of substantive law ; but he was for ever busy with new devices for enforcing the law. Much of what he did, much that was to determine the fate of our law in after ages, was done in an informal fashion without the pomp of legislation. A few words written or but spoken to his justices might establish a new mode of procedure. There would be nothing to be proclaimed to the world at large, for in theory there was to be no change in the law ; and yet very surely the whole law of England was being changed both in form and in substance. To this administrative character of his reforms we may ascribe our lamentable lack of documentary evidence. New laws demanding the obedience of all his subjects would have been preserved; but a mere instruction given to his justices might not be embodied in any formal instrument and might well escape the notice of the most punctual chronicler. And so it came about that in a very short time many of the results of his activity were regarded not as the outcome of 1 As to Henry's reforms we have little to add to what has been said by Dr Stubbs in the Introduction to the Gesta Henrici, vol. ii., the Select Charters, and the Constitutional History. 8—2 116 The Age of Glanvill. [bk, i. ordinances, but as part and parcel of the traditional common law. A few ordinances or ' assizes,' those which seemed most important to his contemporaries, found their way into the texts of the chroniclers ; some have been recovered of late years out of unique or almost unique manuscripts ; but we have every reason to fear that others have been irretrievably lost. Constitu- The first great legal monument of the reign is however no CUrendon. ordinance. In 1164, when the dispute with Becket was waxing hot, Henry held a great council at Clarendon and'there caused a 'recognition and record' to be made of certain of those customs, liberties and dignities that his ancestors had enjoyed. He called upon his nobles to declare the law of the realm as to the matters that were in debate between church and state. Their declaration of the king's customs was put into a written document, known to us as ' the Constitutions of Clarendon,' and to this the bishops were required to append their seals ^ Henry was not legislating ; according to his own theory he was playing a conservative part and relying upon prescriptive right. He demands a definition of the old law and then tenders this ^ to the prelates as a concordat. Not long afterwards, probably Assize of in the first months of 1166, he was again holding a great as- ' sembly at Clarendon and 'by the counsel of all his barons' he issued an assize which made great changes in the administra- tion of the criminal law. Whether this was intended to be a permanent measure or was merely to serve as an instruction for the justices who were just being sent out to hold a great eyre, we cannot say for certain, but it was sufficiently novel and stringent to require the consent of the magnates. We have however some reason for believing that on this same occasion Henry took another step which was to be of equal importance with that which is recorded by the words of our extant ' Assize of Clarendon,' that he issued — it may be merely by way of instruction to his justices — an Assize of Novel Disseisin which in course of time was to mould the whole history of our civil procedure and to cut deeply into the body of our land law. The words of this ordinance or instruction have not come down to us ; very soon they were concealed from view by the case-law Inquest of which had grown up around them. In 1170 Henry instituted Sheriffs. ,..., , „, !.«., a grand mquiry into the conduct or the sheniis whom he had ' The document that we have professes only to give 'a certain part' of the customs that were ' recognised and recorded,' CH. V.J The Age of Glanvill. 117 removed from their offices. The instruction for this ' Inquest of Sheriffs' we have : it is an early example of those articles of inquest by which as time goes on the whole machinery of justice is subjected to examination and amendment. At Northampton Assize of in 1176 a fresh set of instructions was given to the itinerant ton. "'"'^ justices ; the Assize of Clarendon was to be enforced but in a yet severer form. A brief clause in this Assize of Northampton seems to be the origin of the possessory action of ' mort d'an- cestor' which takes its place beside the ' novel disseisin'.' An Assize of Arms from 1181, an Assize of the Forest from 1184, an Ordinance regulating the collection of the Saladin Tithe from 1188, an Assize of Bread of an uncertain date, — these seem to complete the list of the ordinances that have come down to us^. For the rest, we may draw some inferences from the sheriffs' accounts recorded in the annual pipe rolls, from the works of Glanvill and Richard FitzNeal and from the stories told by the chroniclers ^ If we try to sum up in a few words those results of Henry's Henry's in- reign which are to be the most permanent and the most jiig j^ry ' fruitful, we may say that the whole of English law is centralized ^^ and unified by the institution of a permanent court of pro- ■writ. fessional judges, by the frequent mission of itinerant judges throughout the land, by the introduction of the 'inquest' or 'recognition' and the 'original writ' as normal parts of the machinery of justice. We must speak briefly of each of these matters and will begin with that which modern Englishmen will be apt to think the most distinctive — the inquest, the recognition, trial by jury*. The essence of the jury — if for a while we use the term Essence of 'jury ' in the widest sense that can be given to it — seems to be ® J""^- this : a body of neighbours is summoned by some public officer to give upon oath a true answer to some question. The question to be addressed to them may take many different 1 Ass. Northamp. c. 4. 2 The documents are printed in the Select Charters, except the Assize of Bread, for which see Cunningham, English Industry and Commerce, i. 502. ' The most striking testimonies to Henry's governmental activity are col- lected by Stubbs, Const. Hist. § 147. Balph Niger says 'NuUo quaestu satiatus, abolitis legibus antiquis, singuUs annis novas leges quas assisas vooavit edidit.' « In the main we accept the results attained by Brunner in his Entstehung der Schwurgerichte. These have ah^eady been adopted by Stubbs, Const. Hist. § 164. See also Brunner, D. B. G. ii. 522-7. 118 The Age of Glanvill. [bk. i. forms : it may or it may not be one which has arisen in the course of litigation ; it may be a question of fact or a question of law, or again what we should now-a-days call a question of mixed fact and law. What are the customs of your district ? What rights has the king in your district ? Name all the land- owners of your district and say how much land each of them has. Name all the persons in your district whom you suspect of murder, robbery or rape. Is Roger guilty of having murdered Ralph? Whether of the two has the greater right to Blackacre, William or Hugh? Did Henry disseise Richard of his free tenement in Dale ? — The jury of trial, the jury of accusation, the jury which is summoned where there is no litigation merely in order that the king may obtain in- formation, these all spring from a common root. On the other hand we have to distinguish the jury from a body of doomsmen, and also from a body of compurgators or other witnesses adduced by a litigant to prove his case. A verdict, even though it may cover the whole matter that is in dispute between the litigants, even though it may declare that William has a better right to Blackacre than has Hugh, differs es- sentially from a judgment, a doom adjudging the land to William. Even though the form of the verdict and its con- clusive force be such that the judgment must follow as mere matter of course, still between the sworn verdict and the judgment there is a deep gulf^ If what we were seeking for were a court in which at the bidding of its president, of some national or royal officer, ealdorman or reeve, the inhabitants of a district, or some selected group, perhaps twelve, of such inhabitants, deemed the dooms, we should have no difficulty in discovering the origin of trial by jury. Everywhere we might find such courts, for during the earlier middle ages it is the exception rather than the rule that the judgment should be made by the lord or president of the court or "by a group of professional justices. But what the jurors or recognitors of our twelfth century 1 When both the jury and the body of doomsmen are already established institutions, the transformation of doomsmen into jurors may be possible, and this transformation may actually have taken place in our manorial courts. See Manorial Pleas (Selden Society), pp. Ixvi-lxviii; Vinogradofi, Villainage, 370-1. But that the jury should have originally grown out of a body of dooms* men seems almost impossible. CH. v.] The Age of Glanvill. 119 deliver is no judgment; they come to 'recognise,' to declare, the truth : their duty is, not indicia facere, but recognoscere veritatem. No less deep is the gulf which separates them from witnesses adduced by a litigant. If all that we wanted were witnesses, if all that we wanted were a fixed number of witnesses, for example, twelve, there would really be no problem before us. But the witnesses of the old Germanic folk-law differ in two respects from our jurors or recognitors: — they are sum- moned by one of the litigants, and they are summoned to swear to a set formula ; the jurors are summoned by a public officer and take an oath which binds them to tell the truth whatever the truth may be. In particular they differ from oath-helpers or compurgators; the oath-helper is brought in that he may swear to the truth of his principal's oath ; normally he has been chosen by the litigant whose oath he is to support, and even when, as sometimes happens, the law, attempting to make the old procedure somewhat more rational, compels a man to choose his oath-helpers from among a group of persons designated by his adversary or by his judges, still the chosen oath-helper has merely the choice between swearing to a set formula ('The oath is clean that A. B. hath sworn') or refusing to swear at all. On the other hand the recognitor has to swear a promissory oath — to swear that he will speak the truth whatever the truth may be. Then on the face of our English history we seem to see The jury a that the jury is very intimately connected with royal power, t^t^n™^''' Not ' only do the king and his officers make the freest use of it in the form of 'an inquest ex officio' for the purpose of obtaining any information that they want about ' royal rights, local customs or other matters in which the king has an interest, but as a part of legal procedure civil and criminal the jury spreads outwards from the king's own court. To the last trial by jury has no place in the ordinary procedure of our old communal courts. The English jury has been so highly prized by Englishmen, origin of so often copied by foreigners, that its origin has been sought ^he''"'^^' in many different directions. At the present day however ^"^^^h there can be very little doubt as to the quarter to which we ought to look. We must look to the Frankish inquisitio, the prerogative rights of the Frankish kings, not to the ordinary procedure of the Frankish courts; that, like the 120 The Age of Glanvill. [bk. procedure of our own ancient communal courts, knows but such antique modes of proof as the ordeal and the oath with oath-helpers. But the Frankish king has in some measure placed himself outside the formalism of the old folk-law ; his court can administer an equity which tempers the rigour of the law and makes short cuts to the truth'. In particular, imitating, it may be, the procedure of the Roman fiscus", he assumes to himself the privilege of ascertaining and maintaining ■'' his own rights by means of an inquest. He orders that a group of men, the best and most trustworthy men of a district, be sworn to declare what lands, what rights, he has or ought to have in their district. He uses this procedure for many different purposes ; he uses it in his litigation : — he will rely on the verdict of the neighbours instead of on battle or the ordeal ; he uses it in order that he may learn how he is served by his subordinates : — the neighbours are required to say all that they know about the misconduct of the royal officers ; he uses it in order that he may detect those grave crimes which threaten his peace : — the neighbours must say whether they suspect any of murders or robberies. The procedure which he uses in support of his own rights he can and does grant as a favour to others. In particular he will concede to a church that its lands shall, like his demesne lands, be protected by inquest, that the bishop, if his title be attacked, may put himself upon the verdict of his neighbours instead of abiding the risk of a judicial combat. All this we see in the Frankish empire of the ninth century ; we see it in the Neustria which the Normans are invading. Then the deep darkness settles down. When it lifts we see in the new states that have formed themselves no central power capable of wielding the old prerogatives. For a long time to come the sworn inquest of neighbours will not be an utterly unknown thing in France, it will only be finally overwhelmed by the spread of the romano-canonical procedure; even in Germany it will appear from time to time ; yet on the whole we may say that but for the conquest of England it would have perished and long ago have become a matter for the antiquary. The jury in Such is now the prevailing opinion, and it has triumphed in England. 1 Brunuer, Sohwurgerichte, p. 74 — 5. 2 Ibid. p. 87. OB. V.J The Age of Glanvill. 121 this countiy over the natural disinclination of Englishmen to admit that this ' palladium of our liberties ' is in its origin not English but Frankish, not popular but royal. It is certain that of the inquest of office or of the jury of trial the Anglo-Saxon dooms give us no hint, certain also that by no slow process of evolution did the doomsman or the oath-helper become a recognitor. The only doubt that there can be is as to the jury of accusation, the jury as an organ oifwma puhlica. This species of the inquest is that which is the most likely to have penetrated beyond the limits of the empire, for within those limits it was adopted by the church for its own purposes. Just as the king might collect charges of crime, so the church might collect charges of sin. In the early part of the tenth century the canonist Regino of Priim describes the bishop holding his synod, selecting a number of trustworthy men from among the assembled laity, administering to them an oath that they will tell the truth and conceal nothing for love or hate, reward or kinship, asking them to report their suspicions of their neighbours, compelling to the ordeal or to compurgation those against whom bad tales are told\ It would not be wonderful if this procedure spread from the Frankish church to the English ; in the days of Dunstan and Oswald the English church was borrowing ideas and institutions from the Frankish. But we have no direct proof that at any time before the Conquest the English church did use this system of sworn communal accusation. There is however one law which must cause some difficulty. It is a law of ^thelred the Unready, published, so it would seem, in the year 997 and applicable only to the Danish district ". In it we read how a moot is to be held in every wapentake and how the twelve eldest thanes are to go out with the reeve and to swear upon the relic that he puts into their hands that they will accuse no innocent and conceal no guilty man. Certainly this looks like a jury of ' Eegino Prumiensis de Ecoles. Discipl. lib. 2, cap. 2 (Migne, Patrol, cxxxii. 282). Stubbs, Const. Hist. i. p. 662, remarks that the iuratores synodi 'do not present,' but 'only reply to the inquiry of the visiting bishop.' But there is no contrast here, for the English jurors by their presentments only reply to inquiries addressed to them by the royal officer. Op. Burohardi Wormaciensis Decreta, lib. i. cap. 91 (Patrologia, oxl. 671). 2 JEthelred, iii. 3. As to the Danish character of this ordinance see Schmid, Gesetze, p. li ; Brunner, Schwurgerichte, p. 403 ; E. Maurer, Krit. Ueberschau, T, 389 ; Steenstrup, Danelag, p. 209. man age. 122 The Age of Glanvill. [bk. i. accusation, but the context will make us doubt whether we have here a law of any generality'- There seem however to be good reasons for believing that some of the Scandinavian nations came by a route of their own to something that was very like the jury ^. The investigation of this matter is made the more difficult by -the comparatively recent date of the Scandinavian law-books. No doubt there is here a wide field for research, but it seems unlikely that any new discovery will disturb the derivation of our English inquests from the Frankish inquests. We can not say a priori that there is only one possible origin for the jury, we can not even say that England was utterly unprepared for the introduction of the inquest, but that the Norman duke brought it with him as one of his -\j~ prerogatives can hardly be disputed'. Tbe Hardly had England been conquered before the sworn inquest inquest ™„.,i , the Nor- 01 neighbours appeared as part of the system oi government and royal justice. The great fiscal record known to us as Domesday Book was compiled out of the verdicts of juries*. The king makes use of the same engine in his own litigation ; be can bestow the right to make use of it upon favoured churches^; he can direct its employment in any particular case". We see too a close connexion between the jury of trial and the protection of possession, a connexion which is to become prominent hereafter. In the earliest case in which there is to our knowledge anything that could be called a trial by jury the Conqueror directs his justiciars. Archbishop Lanfranc, the count of Mortain and the bishop of Coutances to summon to one, place the moots of several shires to hear a plea between the abbot of Ely and divers other persons. Certain of the English who know what lands were held by the ' Brunner, Schwurgeriohte, 402-3. " K. Maurer, Das Beweisverfahren naoh deutsohen Eechten, Krit. Ueber- Bohau, V. 332, 374. 3 von Amira, Paul's Grundriss der German. Philologie ii. ii. p. 198, contends that the jury appears independently (1) in the Frankish king's court, (2) the Danish king's court, and (3) the Icelandic courts. * D. B. iv. 497. (Liber Eliensis.) " See e.g. Henry II. 's charter for Boohester, Monast. i. 177 : ' Omnes minutas terras... confirmo in perpetuuin...in tantum et tarn pleniter sicut proprii ministri mei exquirere deberent.' This should be compared with the Frankish and Norman privileges. Brunner, Schwurgerichte, 92-95, 288-45. " The principal cases are collected by Palgrave, Commonwealth, ii. p. olxxvi, and Bigelow, Flacita Anglo-Normannica. CH. v.] Tlie Age of Glanvill. 123 church of Ely on the day of the Confessor's death are to declare their knowledge upon oath. This will be a verdict, not a judgment. The justices are to restore to the church, not all the lands that she had at the date thus fixed, but only such of them as no one claims under the Conqueror. A particular question, a question about possession at a given moment of time, is thus singled out as one that should be decided by a sworn inquest of neighbours'. Had the abbot of St Augustines -a ship free to cross the sea on the day when the king last went abroad ? How many pigs free of pannage had the abbot of Abingdon in the time of Henry I. ? Did this land belong of old to Bridton or to Bridport ? — Such and such like are the questions about which verdicts are taken. Still throughout the Norman period trial by jury, the introduction of an inquest into the procedure of a law-suit, remains an exceptional thing. The Leges Henrici know nothing of it ; their iudices are not recognitors but doomsmen. Of the accusing jury on the other hand faint traces are to be found. We certainly cannot say that it was never used, but we read very little about it^ Under Henry II. the exceptional becomes normal. . The Henry's king concedes to his subjects as a royal boon his own prerogative Siquest. ^ procedure. This is done bit by bit, now for this class of cases and now for that. It is probable that while not yet king he had done something of the same kind in Normandy ^ It is by no means unlikely that the class of disputes which The assize was the first to be submitted as a matter of common practice to a "*™'"- jury, was one in which the claims of the church came into collision with the claims of the state. In the twelfth century the church was asserting and establishing the principle that all litigation about land that had been given by way of alms to ^ Hamilton, Inquisitio Com. Cantab, p. xviii. 2 On several occasions iuratores are mentioned on the Pipe Eoll of 31 Henry I. See also Brnnner, Schwurgerichte, pp. 465-6. ^ Brunner, pp. 301-4. As to Scotland, there is no doubt that from the time of David I. onwards the kings made use of the inquest procedure. One passage in the laws ascribed to David (c. 35) speaks as though a whole system of writs of novel disseisin and mort d'anoestor was already in existence; but the Mss. in which this passage is found seem to be few and late, and it is hardly in keeping with its surroundings. On the other hand certain passages which point to inquests which decide subordinate questions in criminal oases (o. 6) may well be ancient. On the whole we take it that the jury has much the same history in Scotland and in England : it spreads outwards from the king ; it is an ' assize,' an institution established by ordinance. 124 The Age of Glanvill. [bk. l. God and the saints, should come before her courts. This principle was hardly disputed in Stephen's day ; but of course in many cases the question would arise — ' Is this land alms or is it lay fee ? ' To allow the case to go for good and all either to the temporal or to the spiritual forum, would be to beg this im- portant preliminary question. Church and state are at issue, and neither should be judge in its own cause. The voice of the countryside about this question — which can be regarded as a question of fact, ' Lay fee or alms ? ' — may be listened to ; it comes, so to speak, from the outside and will be impartial. At any rate Henry in the Constitutions of Clarendon claimed as one of the ancient customs of the realm that such a question should be decided by the oath of an inquest in the presence of his justiciar ^ In this as in other instances we have some evidence that the king's claims were founded on past history. A story comes to us from the abbey of St Albans which describes a law- suit of Stephen's day in which the question ' Lay fee or alms ? ' was submitted to a jury charged to tell the truth both by the king and by the bishop of the diocese''. Be this as it may, already in 1164 Henry asserted that a procedure which in after days was known as the assisa utrrnn was and ought to be a normal part of the machinery of justice. A ' recognition ' by twelve lawful men was to decide whether (utrum) the land in question was alms or lay fee. The assize Some two years later, perhaps at the council held at disseisL. Clarendon in the first months of 1166, Henry took a far more important step. He issued an ordinance and instituted a procedure : ordinance and procedure alike were known as the assize of novel disseisin (assisa novae disseisinae). At that council was published the edict known as the Assize of Claren- don, which deals with criminal matters and which served as instructions for the justices who were being sent out on a great eyre throughout the land. We fix this date as that of the assize of novel disseisin because the next pipe roll, a roll which records the abundant profits reaped by the itinerant justices in the field of criminal law, gives us also our first ' Const. Clareud. c. 9. 2 Gesta Abbatum, i. 113-5. The story is told with great particularity. In all probability the substance of it is true and comes from Stephen's reign ; but apparently some mistakes have been made about the names of the various persons concerned in it, as a discussion of dates would show. CH. v.] The Age of Glanvill. 125 tidings of men being amerced for disseisin ' against the king's assize ' ; from that moment onwards we get such tidings year by year'. Of this ordinance, which was in the long run to prove itself J^^^^* ^* one of the most important laws ever issued in England, we cliaseisin, have not the words. Bracton tells us that wakeful nights were spent over it^ and we may well believe him, for the principle that was to be enforced was a revolutionary one. It was this : — ■ If one person be disseised, that is, dispossessed, of his free tenement unjustly and without a judgment, he is to have a remedy by royal writ: a jury is to be empanelled; in the presence of the king's justices it is to answer this simple question about seisin and disseisin ; if it gives the plaintiff a verdict he is to be restored to his possession. We may state the matter in two other ways : by the one we may show what is being done for our private, by the other what is being done for our public law. (1) Possession or seisin, as something quite distinct from ownership or best right, is to be protected by an unusually rapid remedy. (2) The seisin of a free tenement, no matter of what lord it be holden, is protected by the king. Hereafter in connexion with property law we may speak of the private side of this new remedy and of its relation to the actio spoUi of the canon law ; here we have but to notice the great principle of public law that the king has laid down. The ownei'ship of land may be a matter for the feudal courts : the king himself will protect by royal writ and inquest of neighbours every seisin of a free tenement. It is a principle that in course of time can be made good even against kings. The most famous words of Magna Carta will enshrine the formula of the novel disseisin ^ At some time or another in his reign Henry went further '^^^ srand ° n 1 ■ !• assize. than this. He decreed that no man need answer for his free 1 Pipe Eoll, 12 Hen. II. p. 65 'pro dissaisina super assisam Eegia'; 13 Hen. II. p. 134 'pro dissaisina facta super' assisam Regis'; 14 Hen. II. passim. No doubt there are writs of earlier date which in many respects resemble the writ of novel disseisin; see Bigelow, Plaeita, p. 128, 130, 169, 170; Howlett, Chronicles of Stephen etc. vol. iii. p. xxxvii; but we cannot find anything which shows that the general ordinance or ' assize ' was of earlier date than 1166. 2 Bracton, f. 164 b: 'de benefieio prineipis succurritur ei per recognitionem assisae novae disseisinae multis vigUiis excogitatam et inventam.' 5 Charter, 1217, o. 35: 'NuUus Uber homc.dissaisietur de libero tenemento 126 Tlie Age of Glanvill. [bk. i. tenement without royal writ'. He decreed also that in a proprietary action for land, an action proceeding in the feudal court, the defending party, the ' tenant ' as he was called, might have the action removed into the king's court and the whole question of right determined by the verdict of neighbours. In this case the inquest bears the name of the grand assizer It is a far more solemn affair than the assize of novel disseisin and it speaks to the question of best right. The term ' grand assize ' would seem to point to some great ordinance ; but the thought cannot but occur to us that the three principles which we have here stated may have been announced, and that the institutions which were to maintain them may have been fashioned, at one and the same time. In every case we see the royal protection of possession. No one is to be disseised of his free tenement unjustly and without a judgment ; no one is to be disseised of his free tenement even by a judgment unless he has been summoned to answer by a royal writ ; no one is to be forced to defend his seisin of a free tenement by battle'. The ordinance that instituted the grand assize was a one-sided measure, a protection of possessors. The claimant had to offer battle ; the possessor, if he pleased, might refuse battle and put himself upon the grand assize. The assize Then to all Seeming the council held at Northampton in d'ancestor. 1176 instituted a second possessory assize, the assize of mort d'ancestor (assisa de morte antecessoris*). Apparently we have the words whereby this was accomplished, though the practice of the courts soon left those words behind it. The principle of suo...nisi per legale iudioium parium suorum vel [ = et] per legem terrae.' Compare the formula of the assize ' Si B. iniuste et sine iudicio dissaisivit A. de libero tenemento suo.' ^ Glanvill, xii. 2, 25; Brunner, Schwurgeriehte, 411. 2 Glanvill, ii. 7. ' Bracton, f. 112: 'Et siout non debet sine brevi respondere, ita neo debet sine iudicio disseisiri.' Ibid. f. 161 : ' Nemo debet sine iudicio disseisiri de libero tenemento suo, nee respondere sine precepto domini Eegis neo sine brevi.' Bot. Pat. 76: King John says to the people of Ireland 'NolumuB...quod aliqnis ...vos possit disseisire de liberis tenementis vestris iniuste aut sine iudicio, nee quod in plaoitum ponamini per alieuius breve nisi per nostrum vel iusticiarii nostri.' See Manorial Pleas (Selden Soc), p. Iv. We know from Glanvill (ii. 19) that the grand assize was established by a written ordinance: 'poena autem iu hac assisa temere iurantium ordinata est et regali institutioni eleganter inserta.' * Ass. Northampt. o. 4. OH. v.] The Age of Glanvill. 127 the novel disseisin is that one man, even though he" claims and actually has the ownership of the land, is not to turn another man out of possession without first obtaining a judgment. The principle of the mort d'ancestor is that if a man has died in seisin, that is, possession of a tenement and was not holding it as mere life-tenant, his heir is entitled to obtain possession of it as against every other person, no matter that such person claims and actually has a better right to the land than the dead man had. Such a right, if it exists, must be asserted in an action : it is not to be asserted by ' self-help,' by a seizure of the vacant tenement. Another blow is thus struck at feudal justice and a heavy one, for the defendant in an assize of mort d'ancestor is very likely to be the dead tenant's lord, who will have seized the lands upon some pretext of making good his seignorial claims. Another use is found for the inquest of neighbours, for the questions whether the dead man died seised and whether the claimant is his heir will be decided by verdict. Scarcely less important than litigation about land is liti- The assize gation about the advowsons of churches. Henry has here present'" - asserted as against the church that such litigation belongs to a '"'^''*- temporal forum, and as against the feudatories that it belongs to the king's own court'. A proprietary action for an advowson must be begun in the king's court by royal writ, ' writ of right of advowson' ; the claimant must offer battle ; his adversary may choose between battle and the grand assize. Then at some time or another during his reign Henry gives a possessory action, the assize of darrein presentment (assisa de ultima presmtatione), which stands to the writ of right of advowson in somewhat the same relation in which the novel disseisin stands to the writ of right for land. If the church be vacant and two persons be quarrelling about the advowson, it is very necessary that some provisional, some possessory judgment should be given. Especially necessary is this after the Lateran Council of 1179, for should the church remain vacant for three months the diocesan bishop will fill up the vacancy I The principle of the new assize is, simply stated, this, 'He who presented last time, let him present this time also ; but this without prejudice to any question of right.' An inquest of neigh- ' Const. Clarend. c. 1. 2 Gesta Henrici, i. 233; Hoveden, ii. 184. jury. 128 The Age of Glanvill. [bk. i. hours is summoned to declare who it was that presented the last parson'. Assize and Thus the sworn inquest begins to make its way into our ordinary civil procedure. In a proprietary action for land or for advowson, the ' tenant,' the passive party, may, rejecting battle, ' put himself upon the grand assize of our lord the king,' and an inquest will then be called in to declare who has the Letter right. In four other cases a plaintiff may begin proceedings by obtaining a royal writ, which will direct that an inquest shall be sworn to answer a particular question formulated in the writ. These four cases are the subject-matter of the four petty assizes, (1) the assize utrum, (2) the novel disseisin, (3) the mort d'ancestor, (4) the darrein presentment. It is probable that for a short while a few other cases were met in a similar fashion ; but in a little time we have these four and only these four petty assizes. Only in these four instances does the writ which is the first step in the procedure, 'the original writ,' direct the empanelling of an inquest. Trial by jury, in the narrowest sense of that term, trial by jury as distinct from trial by an assize, slowly creeps in by another route. The principle from which it starts is simply this, that if in any action the litigants by their pleadings come to an issue of fact, they may agree to be bound by the verdict of a jury and will be bound accordingly. In course of time the judges will in effect drive litigants into such agreements by saying 'You must accept your opponent's offer of a jury or you will lose your cause ' ; but in theory the jury only comes in after both parties have consented to accept its verdict. An assize, other than a grand assize, is summoned by the original writ; it is summoned at the same time that the defendant is summoned and before his story has been heard ; a jury is not summoned until the litigants in their pleadings have agreed to take the testimony of 'the country' about some matter of fact. In course of time the jury, which has its roots in the fertile ground of consent, will grow at the expense of the assize, which has sprung from the stony soil of ordinance ; even an assisa when summoned will often be turned into a jury {vertitur in juratam) by the consent of the parties ; but still trial by jury, if we use this term in a large sense, and neglect some technical details, is introduced by the ordinances 1 aianvill, xiii. 18, 19. CH. V.J The Age of Glanvill. 129 of Henry II. as part of the usual machinery of civil justice. Already before the end of his reign it fills a large space in Glanvill's text-book. The old modes of proof are not abolished ; proof by battle we shall have with us until 1819^ proof by oath-helpers until 18.33^; but from this moment onwards they are being pushed into the background. Closely connected with the introduction of trial by inquest The system is the growth of that system of original writs which is soon writs, to become the ground-plan of all civil justice. For a long time past the kings have at the instance of complainants issued writs, which either bade their adversaries appear in the royal court to answer the complaint, or else committed their causes to the care of the sheriff or of the feudal lord and commanded that right should be done to them in the county court or the seignorial court. Such writs were wont to specify with some particularity the subject-matter of the complaint. The sheriff, for example, was not merely told to entertain a suit which the abbot of Abingdon was bringing against the men of Stanton ; he was told to do full right to the abbot in the matter of a sluice which, so the abbot alleged, had been broken by the men of Stanton. As the king's interference becomes more frequent and more normal, the work of penning such writs will naturally fall into the hands of subordinate officials, who will follow precedents and keep blank forms. A classification of writs will be the outcome ; some will be granted more or less as a matter of course, will be brevia de cursu, writs of course ; those which are directed to a feudal lord will be distinguished from those which are directed to a sheriff; those which bid the sheriff do justice, from those which bid him summon the defendant to the king's own court ; those which relate to the ownership of land from those which relate to debts. But the introduction of the possessory assises gives to this system of writs a peculiar definiteness and rigidity. The new actions have a new procedure appropriate to them and are governed by carefully worded formulas. Thus the first writ issued in an assize of novel disseisin commands the sheriff to empanel an inquest in order that one precise question may be answered : — Did B 1 Stat. 59 Geo. in. c. 46. 2 Stat. 3 and 4 Will. iv. o. 42, sec. 13. p. M, 130 The Age of Glanvill. [bk. i. / unjustly and without a judgment disseise A of his free tene- ment in X since the king's last journey into Normandy ? In countless points an action thus begun will differ from a proprietary action for land begun by a writ of right ; both of them will differ from an action of debt, and even between the several possessory assizes many distinctions must be drawn, in particular as to the number of ' essoins,' excuses for non- appearance, that the litigants may proffer. Thus before the end of Henry's reign we must already begin to think of royal justice — and this is becoming by far the most important kind of justice — as consisting of many various commodities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice ; he must choose an appropriate writ and with it an appropriate form of action. These wares are exposed for sale ; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vendor, he is a manu- facturer and can make goods to order ; the day has not yet come when the invention of new writs will be hampered by the claims of a parliament ; but still in Glanvill's day the officma iustitiae has already a considerable store of ready-made wares and English law is already taking the form of a commen- tary upon writs. The The accusing jury also has become part of the ordinary mechanism of justice. The first definite tidings that we get of it are somewhat puzzling. To all seeming Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere suggestion that they are of ill fame. Either some one should stand forth and commit himself to a definite accusation, or else the ill fame should be sworn to by twelve lawful men of the neighbourhood siimmoned for that purpose by the sheriff; in other words, the ecclesiastical judge ought not to proceed ecc officio upon private suggestions ^ ' Continuatio Beocensis, Hewlett's edition of Eobert of Torigny, p. 827: ' Bex Anglorum Henricus ad Natale Domini [1159] fuit apud Falesiam, et leges instituit ut nullus decanus aliquam personam acousaret sine testimonio vici- norum oireummanentium, qui bonae vitae fama laudabiles haberentur.' Const. Clarend. c. 6 : ' Laid non debent accusari nisi per certos et legales accusatores et testes in praesentia episcopi., Et si qui tales fuerint qui culpantur, quod non accusing jury. CH. v.j The Age of Glanvill. 131 Henry seems to be forcing this rule upon reluctant prelates, and at the same time to be asserting that it is an ancient rule. From this we may perhaps infer that the synodal jury as described to us by Eegino of Priim had been known in Normandy — it may be, in England also — but that of late it had been thrust aside by a. laxer procedure which was less fair to the laity. This part of the story must remain very obscure'. However in 1166 the accusing jury becomes prominent. In every county twelve men of every hundred and four men of every township are to swear that they will make true answer to the question whether any man is reputed to have been guilty of murder, robbery, larceny or of harbouring criminals since the king's coronation. Those who are thus accused must go to the ordeal ; even if they are successful there, even, that is to say, though the judgment of God is in their favour, they must abjure the realm. Ten years later at Northampton a sharper edge was given to this new weapon ; forgery and arson were added to the list of crimes for which inquisition was to be made ; the criminal who failed at the ordeal was to lose a band beside that foot of which the earlier ordinance deprived him. The new ordinance was to endure during the king's good pleasure. Such inquests were to be taken before the itinerant justices of the king ; they were also to be taken by the sheriffs, and here we may see the origin of those inquisitions into crime velit Tel non audeat aliqnis eos accnsare, vicecomes requisitus ab episcopo faciet iurare duodecim legaleB homines de viciBeto, seu de villa, coram episcopo, quod inde veritatem secnndum conscientiam suam manifestabunt.' With this should be compared Magna Carta, 1215, c. 38 ' NuUus ballivus ponat de cetero aliquem ad legem simpUci loquela sua, sine testibus fidelibus ad hoc inductis.' ^ In or about 1246 Bobert Grosseteste made strict inquest as to the con- tinence and morals of the laity. The king issued a prohibition to the effect that he was not to take recognitions upon oath save in matrimonial or testa- mentary causes. Matthew Paris, Chron. Maj. iv. 579, speaks as though the bishop's proceedings were deemed both novel and harsh. From this we may infer that in consequence of Becket's rejection of the Constitutions of Clarendon, the church lost a right offered to her by Henry, namely, a right to demand that the civil power should provide her with synodal juries. For the future she had to rely upon her own powers, and the state seems even to have opposed such endeavours as were made by Grosseteste to use the procedure of communal accusation as a general means of detecting sins. As a matter of fact this procedure seems to have been chiefly used with reference either to purely ecclesiastical matters, such as the repair of churches and attendance at church, or to those sins of the flesh which admittedly lay within the province of ecclesiastical jurisdiction. 9—2 132 The Age of Glanvill. [bk. I. structure of the king's court. which in later days the sheriff makes twice a year as he takes his ' turn' through the hundreds'. Every time that the justices are sent on their rounds the king can at pleasure add to the list of questions that they are to put to the jurors ; in the next century that list, the articles of the eyre (capitula itineris), will be long and will be constantly growing longer. Closely con- nected with the discovery of crimes is the ascertainment of the king's rights. Criminal justice is one source of revenue, but there are others, and the inquest may be used for their detection. From the verdicts of local juries the king collects whatever information he may require about his deniesne lands, his feudal rights, the receipts of his sheriffs, the misconduct of his officers. There can be no doubt that one result of these various measures was to increase at a rapidly accelerating rate the amount of judicial business that had to be transacted in the king's name. The functions of his court were changed and a corresponding change in its structure became necessary. It was no longer to be an extraordinary tribunal, a court for great men, for great causes, for matters that concerned the king ; it was to become an ordinary tribunal for the whole realm. Many difficulties however meet us if we attempt to define the changes in its structure ^ In the first place, we are tempted to use terms which are more precise than those that were current in the twelfth century. In particular we are wont to speak of the Curia Regis without remembering that the definite article is not in our documents. Any court held in the king's name by the king's delegates is Curia Regis. Thus the institution of what in course of time will be a new tribunal, a Court of King's Bench or a Court of Common Pleas, may be found in some small rearrangement, some petty technical change, which at the moment passes unnoticed. In the second place, the form which his court shall take, the mode in which it shall do justice, these are matters for the king ; he is very free to decide them from day to day as he pleases, and this by a few spoken words. In the third place, we have direct evidence that Henry tried experiment after experiment". He was keenly interested in ' Select Pleas in Manorial Courts (Selden Soc), pp. xxvii.-xxxviii. 2 Stubbs, Introduction to Gesta Henrici, vol. ii., has discussed this matter at length. ' Dieeto, i. 434-5. CH. v.] The Age of Glanvill. 133 the work of justice and learnt from year to year the lessons that experience taught him. Therefore it is but too possible that we may give undue weight to this or that passage in a chronicle. However from the yeaj 1178 we hear that the king has chosen five men, two clerks and three laymen, who are not to depart from the king's court but are to hear all the com- plaints of the kingdom ; questions that they can not decide are to be reserved for the king and his wise men'. We here see the definite selection of a small number of men who are to do justice habitually. The court that they are to hold is to be a permanent and a central court; but a reserve of justice is to remain in the king and his councillors. ' It is very probable that we have here a measure of great permanent importance. From the following years we begin to get records which seem to put before us a tribunal which in the main is like that here described. It sits term after term ; usually at Westminster, often at the Exchequer. It is constituted by the king's most trusted advisers. There is Ranulf Glanvill who in 1180 became chief justiciar. There are the three famous clerks who have served Henry well during the fierce strife with Becket, Richard of Ilchester now bishop of Winchester, John of Oxford now bishop of Norwich, Geoffrey Ridel now bishop of Ely. There is the treasurer, Richard son of Nigel who is to be bishop of London. A little later there is Hubert Walter who is rising to greatness. Some laymen there will be; but the earls and great barons are conspicuously absent. We can not fix the number of the justices. Sometimes ten or twelve will be mentioned; but the court seems to have as it were a fringe ; the chief justiciar, 'the treasurer, two or three bishops, will usually be sitting, while others come and go ; some of them may be away upon circuits ; others who are named may be not justices, but chamberlains or sewers; and the kiiig is still making experi- ments, trying now one man and now another". However we may say that before the end of the reign there The central is a permanent central tribunal of persons expert in the ad- """"^ " ministration of justice — of sworn judges'. It can be distinguished ' Gesta Henrioi, u. 207. 2 See Eyton, Itinerary of Heniy II. A good many ' final concords ' from the last years of the reign are gradually being brought to light. They ought to be collected. ' Mapes, De Nugjs, p. 241: 'Habemus et nos oensores sub serenissimo iudice, quorum iustitiam domini sui iustitia remordet, quia iurati coram ipso quod aequitate servata censebunt ut praedicti tres Plutonis arguti indices.' 134 The Age of Olanvill. [bk. I. from the courts held by the itinerant justices, for though every such court is curia Regis, this is capitalis curia Regis'^. It can be distinguished from the exchequer, for though it often sits at the exchequer, and though its principal justices will be also the principal barons of the exchequer", it has a seal of its own and may well sit away from Westminster, while the fiscal business of the exchequer could hardly be transacted else- where". It can be distinguished from those great councils of prelates and nobles that the king holds from time to time; questions too great for it are to be reserved for such councils*. Probably it is already getting the name of ' the bench ' and its justices are justices residing at the bench'. Though it is curia Regis and capitalis curia Regis it is not necessarily held coram ipso Rege. Apparently the writs that summon litigants before it, bid them appear 'before the king or before his justices,' that is to say, before the king if he happens to be in England and doing justice, and if not, then before his justices" No doubt when the king is in this country he will sometimes preside in court, but whether the justices will then follow the king in his progresses, we can not say for certain ; as a matter of fact during the last eight years of his reign the king's visits to England were neither very frequent nor very long. On the whole Westminster seems to be becoming the fixed home of this tribunal; but as yet all its arrangements are very easily altered. Itinerant The visitation of the counties by itinerant justices has been becoming systematic. From the early years of the reign we hear of pleas held on circuit by Richard Lucy the chief justiciar, by Henry of Essex the constable and by Thomas Becket the chancellor. In 1166 the assize of Clarendon was enforced by a party of justices headed by Kichard Lucy and Earl Geoffrey of Mandeville. In 1168 Richard of Ilchester, Guy the dean of Waltham, William Basset and Reginald Warenne visited most of the counties. In 1175 the north and east were perambulated by Ranulf Glanvill and Hugh of Cressi, the south and west by William of Lanvallei and Thomas Basset. In 1176 to execute ' Glanvill, viii. 5. A fine levied before the itinerant juatices always purports to be 'finalia concordia facta in curia domini Begis.' ' DialoguB, lib. i., c. 4-6. « Dialogus, lib. i., o. 15. " Gesta Henrici, ii. 207-8. ^ Madox, Exchequer, i. 798-801. » This is the usual form throughout Glanvill's book. justices. OH. v.j The Age of Glanvill. 135 the assize of Northampton eighteen justices were employed and the country was divided into six circuits ; in 1179 twenty-one justices were employed and the country was divided into four circuits; indeed from 1176 onwards hardly a year went by without there being a visitation of some part of England. These itinerant justices seem to have been chiefly employed in hearing the pleas of the crown (for which purpose they were equipped with the power of obtaining accusations from the local juries) and in entertaining some or all of the new possessory actions. The court that they held was, as already said, curia Regis, but it was not capitalis curia Regis, and probably their powers were limited by the words of a temporary commission. They were not necessarily members of the central court and they might be summoned before it to bear record of their doings'; still it was usual that each party of justices should include some few members of the permanent tribunal. The counties also were frequently visited for fiscal purposes, justices or barons of the exchequer being sent there to assess aids and tallages, while the chief justice of the forest often traversed the land and afilicted the people. No judicial rolls of the reign have come down to us, but cases in during the last years of it such records were being compiled^ court!"^^ For our knowledge of what went on in the courts we have still to look to annalists and biographers, and they are apt to give us not the ordinary but the extraordinary. We dare not, for example, draw many general inferences about the constitution and procedure of the king's court from that famous scene in the castle of Northampton, in which Henry and Becket were the principal actors. We see however that even though the king was angry and was striving to crush one who had become his enemy, he did not venture to pass judgment. To find the judgment at the king's request was the function of the assembled prelates and nobles, or if the prelates would not aid in the work, then the lay barons would do it. Even the duty of pronouncing the judgment was delegated; it was committed to the justiciar, the Earl of Leicester^ Another life-like, if not impartial, story 1 Glanvill, viii. 5. ^ Select Pleas of the Crown (Selden Soo.), pp. xxvi-xxviii. The rolls of the itinerant justices spoken of in the Dialogus lib. ii. o. 1, may have been mere lists of amercements. ' William Fitz Stephen (Materials for Life of Becket, iii.) p. 67. 136 The Age of Glanvill. [bk. i. tells of a great suit between the abbot of Battle and the bishop of Chichester, another of a similar suit between the abbot of St Albans and the bishop of Lincoln. In both cases abbatial privileges were urged against episcopal rights; in both the bishop practically lost his cause ; but in both papal claims were involved and the king, who had no mind to break with the pope, succeeded in bringing about what was in form a com- promise ; in neither case therefore was a judgment pronounced. In the one case', which occurred in 1157, the king sat in the chapter house of the monks at Colchester ; around him were the two archbishops, three bishops, his chancellor (Becket), the two chief justiciars (the Earl of Leicester and Kichard Lucy) and several other barons, while the hall was filled by no small multitude of the people". At times, it would seem, the king retired with a few chosen councillors, the chancellor, the two justiciars, the constables of England and Normandy, a chamber- lain and a clerk, and gave a private audience to one of the parties. Some of the principal members of the court had openly and warmly taken sides before the discussion began. The justiciar Lucy was the abbot's brother, and played the part of an advocate rather than of a judge ; the chancellor also had espoused the abbot's cause, and they and other members of the court took counsel with the abbot while the case was proceeding. The dispute between the abbot of St Albans and the bishop of Lincoln' was heard by the king in the chapel of St Catherine at Westminster in the year 1163; he was surrounded by the prelates and nobles; no less than thirteen bishops were present. But again we see the king retiring to consult with a much smaller body, which consisted of the Earl of Leicester, Kichard de Hommet the constable of Normandy, and that expert clerk Richard of Ilchester. Along with these he care- fully perused the St Albans charters, and showed, so the monks said, a wisdom comparable to that of Solomon*, for he declared that the unsealed land-books of the Anglo-Saxon kings were as good as sealed since they were confirmed by a sealed charter of Henry I. In vain another of the king's confidential clerks, ' Palgrave, Commonwealth, vol. ii. p. xxviii. ' Ibid. p. xlvii. : ' populique insuper multitudine non modioa. ' ^ Gesta Abbatum, i. 150. ' Ibid. 151 : ' Quod in tam iuvene rege non minori sapientiae deputatum est quod dixit, quam indicium Salomouis inter meretrices altercantes.' CH. v.] The Age of Glanvill. 137 Geoffrey Ridel, disturbed this private session, and suggested defects in the abbot's title; the king turned him out of the room. The public session was resumed, the king delivered an opinion very unfavourable to the bishop — 'privileges prevail against prescription^' — but he advised a compromise; the bishop confessed the immunity of the abbey and got some land in return for the confession. On another occasion the king sitting at Clarendon heard a suit between the abbot of Battle and Gilbert de Balliol". The justiciar, Richard Lucy, was present, but Henry took a prominent part in the discussion, maintaining the validity of the royal charters produced by the abbot and swearing by God's eyes that such charters cost him dear. Still the judgment was given by the unanimous consent of the whole court. Short however of proclaiming his own will to be the judgment of his court, there was little that he could not or would not do by way of controlling all the justice that was done in his name. During the early years of his reign, though he was abroad and though he had left a justiciar in England, he maintained this control. The abbot of St Albans sent all the way to Toiilouse for a writ directing the justiciar to rehear a case, in which, in con- sequence of the abbot's default, certain lands had been adjudged to his adversary. He had to pay the heavy sum of a hundred pounds for that writ, and certainly it was no ordinary one, for he had scorned to appear in a court held by a mere justiciar^ But even for ordinary writs men had to go abroad. The curious story told by Richard of Anesty has often been retold^ He was claiming as heir to his uncle certain lands of which Mabel of Francheville, whom he asserted to be illegitimate, was in possession^ He had to begin by sending to Normandy for the king's writ ; soon after he had to send for another writ directed to the archbishop, since the question of bastardy would be tra.nsmitted to the ecclesiastical court. The litigation in the spiritual forum was tedious; he was adjourned from place to place from month to month. The king summoned the army for the expedition to Toulouse ; Richard had to go as far as 1 Gesta Abbatum, i. 154: 'Privilegia, ut credimus, praeiudioantpraesoriptioni.' 2 Palgrave, Commonwealth, vol. ii. p. Ixvii.; Bigelow, Placlta, 175. » Gesta Abbatum, i. 159-166. " Palgrave, Commonwealth, vol. ii. p. v.-xxvii. ; Bigelow, Plaoita, 311 ; Hall, Court Life under the Plantagenets. » See Letters of John of Salisbury (ed. Giles), i. 124. 138 The Age of Glanvill. [bk. I. Gascony for yet another royal writ bidding the archbishop proceed despite the war. The litigation went on for another year during which he appeared in the archbishop's court on some ten different occasions. Once more he had to visit France, for he required the king's licence for an appeal to the pope. He sent his clerks to Rome and the pope appointed judges delegate. Then his adversary appealed, and again he had to send representatives to Rome. At length the pope decided in his favour. Thereupon the case came back to the royal court and week after week he had to follow it. The king appointed two justices to hear his cause, and at length by the king's grace and the judgment of the king's court he obtained the wished for lands \ Many comments might be made upon this story. It will not escape us that in these early years of Henry's reign royal justice is still very royal indeed. Though the king has left his justiciar in England, there is no one here who can issue what we might have supposed to be very ordinary writs. A great change in this most important particular must soon have taken place. The judicial rolls of Richard I.'s reign are largely occupied by accounts of law-suits about very small pieces of ground between men of humble station, men who could not have laboured as Anesty laboured or spent money as he spent it. But throughout his reign Henry took an active share in the work of justice. Even when he had appointed judges to hear a cause, they would advise the successful litigant to wait until a judgment could be given by the king's own mouths He was at heart a lawyer, quite competent to criticize minutely the wording of a charter, to frame a new clause and give his vice-chancellor a lesson in conveyancing'; quite willing on the other hand to confess that there were problems that he could not solve*. No doubt he sold his aid; he would take gifts with both hands ; he expected to be paid for his trouble. He sold justice, but it was a better article than was to be had elsewhere. Walter Map has told us how in the exchequer a poor man obtained an expeditious judgment against a rich ' Falgrave, p. Ixxxiii. : ' et tandem gratia domiui Begis et per iudicium curiae suae adiudioata est mihi terra avunculi mei.' 2 Bigelow, Plaoita, p. 170. 3 Palgrave, p. Ixxiii. ; Bigelow, p. 222. Mapes, De Nugis, p. 227 : ' In legibuB constituendis et omni regimiue corrigeudo discretus, inusitati occultique iudicii subtilis inventor.' * Bigelow, Plaoita, p. 239. CH. v.] The Age of Glanvill. 139 antagonist. Of this as of a marvellous thing he spoke to Ranulf Glanvill. Yes, said the justiciar, we are quicker about our business than your bishops are. Very true, replied Map, but you would be as dilatory as they are if the king were as far away from you as the pope is from the bishops. Glanvill smiled^ And then Map tells how all who had a good cause wished that it might come before the king himself, and he recalls a great day in the history of English law, the day when our king's court entertained a plea between the king of Castile and the king of Navarre". Certainly this was no mean event ; the kings of the south had acknowledged that there was excellent justice to be had in England, and if this was so, to Henry himself the praise is due'. After many experiments he committed the ordinary work of Law and justice to a court of experts, to a learned court. It was well leavened by laymen ; a layman presided over it ; there was no fear of its meekly accepting the romano-canonical system ; but among its most active members were great clerks, and the high rank that they had won, for they had become bishops, would have made them influential members, even had they been less able than they were. But they were able. We speak of such men as Richard of Ilchester, John of Oxford and Geoffrey Eidel, who had lived in the large world, who had been in France, Germany, Italy, who had seen men and cities, pope and emperor, and had written the dispatches of a prince whose policy was at work in every comer of Western Christendom. Very different were they from the English judges of the fourteenth century. Law and literature grew up together in the court of Henry II. Roger Hoveden the chronicler* and Walter Map the satirist" were among his itinerant justices. Law becomes the subject of literature in the Dialogue on the Exchequer and the treatise ascribed to Glanvill. ^ Mapes, De Nugis, p. 241. ' Ibid. p. 242. 3 A full account of the case is given in Gesta Henrici, i. 138-154. We may say, if we will, that there was here an 'international arbitration'; still it was conducted with all the regularity of a law-suit, and the award was expressly based upon a rule of pleading. Each of the kings charged the other with having wrongfully dispossessed him of certain lands. Neither denied the charge. The judgment is that each must restore what he has taken. * Hoveden, ed. Stnbbs, i. p. xxi. ' Byton, Itinerary, 265. 140 The Age of Glanvill. [bk. i. Richard The Dialogus de Scaccario is an anonymous book, but there can be little doubt that we are right in ascribing it to Richard Fitz Neal, that is to say, to Richard the son of that Nigel, bishop of Ely, who was the nephew of Roger, bishop of Salisbury, the great minister of Henry I.' For three genera- tions, first Roger, then Nigel, then Richard, held high offices in the king's court and exchequer. Richard himself became treasurer in or about the year 1158; in 1189 he became bishop of London, but he retained the treasurership until his death in 1198". He was a well-educated man, knew something of the classical Latin literature, had heard of Aristotle and Plato, could make a hexameter upon occasion, and was fond of the technical terms of logic' ; he acted as a royal justice ; he wrote a history of his own time, the lost Tricolumnis* ; but above all he was a financier and knew all that experience and tradition could teach about the history and practice of the exchequer. He seems to have set to work on his dialogue in the year 1177, and to have finished it in 1179 or thereabouts, when already for twenty years he had been the king's treasurer^ Dialogue The book stands out as an unique book in the history of chequer. ' medieval England, perhaps in the history of medieval Europe. A high officer of state, the trusted counsellor of a powerful king, undertakes to explain to all whom it may concern the machinery of government. He will not deal in generalities, he will condescend to minute details. Perhaps the book was not meant for the general public so much as for the numerous clerks who were learning their business in the exchequer*, but still that such a book should be written, is one of the wonderful things of Henry's wonderful reign. We may safely say that it was not published without the king's licence, and yet it exposes to the light of day many things which kings and ministers are apt to treat as solemn mysteries of state. We should know far more of the history of government than ever will be known could we have a Dialogue on the Exchequer from every century ; but we have one only and it comes from the reign of ' The book has been fully discussed by Liebermanu, Einleitung in den Dialogus de Soacoario. It is printed by Madox in his History of the Exchequer and by Stubbs in his Select Charters. ' Liebermann, pp. 33, 42, 54. s Ibid. p. 81. ' Ibid. p. 65. 6 Ibid. p. 10. 6 Ibid. p. 96. CH. v.] Tlie Age of Olanvill. 141 Henry II. Henry was so strong that he had nothing to conceal ; he could stand criticism ; his will and pleasure if properly explained to his subjects would appear as reasonable and at any rate would not be resisted'. And so his treasurer expounded the course of proceedings in the exchequer, the constitution of this financial board, its write and its rolls, the various sources of royal income, the danegeld and the murder fine, the collection of the debts due to the king, the treatment of his debtors, and, coming to details, he described the chess- board and the counters, the tallies, the scales and the melting pot. But for him, we should have known little of the ad- ministrative and fiscal law of his time or of later times — for the rolls of the exchequer sadly need a commentary — but as it is, we may know much. What the treasurer's Dialogue did for administrative and ^?'""'* fiscal law was done by another book for private and criminal law, and for the law of civil and criminal procedure. That book has long been attributed to one who held a yet higher office than the treasurer's, to Ranulf Glanvill the chief justiciar. Ranulf GlanvilP came of a family which ever since the His life. Conquest had held lands in Suffolk; it was not among the wealthiest or most powerful of the Norman houses, but was neither poor nor insignificant. Probably for some time before 1163, when he was made sheriff of Yorkshire, he had been in the king's service ; he had lately been one of those ' fi^iends, helpers and pleaders ' who had aided Richard of Anesty in his famous law-suit'. The shrievalty of Yorkshire was an office that Henry would not have bestowed upon an untried man; Glanvill held it for seven years. In 1174, being then sheriff of Lancashire and custodian of the honour of Richmond, he did a signal service to the king and the kingdom. At a critical moment he surprised the invading Scots near Alnwick, defeated them and captured their king. From that time forward he was a prominent man, high in the king's favour, a man to be employed as general, ambassador, judge and sheriff In 1180 1 Dial. ii. c. 16 : ' Huius autem rei causam, lieet distorta modicum et regiae nimis utilitati gerviens videtur, evidentem et satis iustam secundum patrlas leges eomprobabis.' Ibid. ii. o. 10 : ' Propter solam regis assisam sic esse cognoscas ; nee enim est qui regia« eonstitutioni, quae pro bono pacis fit, obviare presumat.' 2 Diet. Nat. Biography. ' Palgrave, Commonwealth, ii. p. xxiii. 142 The Age of Glanvill. [bk. i. he became chief justiciar of England, prime minister, we may say, and viceroy. Henry seems to have trusted him thoroughly and to have found in him the ablest and most faithful of servants. Henry's friends had of necessity been Richard's enemies, and when Henry died, Richard, it would seem, hardly knew what to do with Glanvill. He decided that the old statesman should go with him on the crusade. To Acre Glanvill went and there in the early autumn of 1190 he died of sickness. Tractatus Whether he wrote the book that has long borne his name is bus. a doubtful question. Some words of the chronicler Roger Hoveden, his contemporary, may mean that he did write it ; but they are obscure words*. On the other hand the title which it generally bears in the manuscripts seems to imply that he did not write it. It is called ' A Treatise on the Laws and Customs of England composed in the time of King Henry the Second while the honourable {illustris vir) Ranulf Glanvill held the helm of justice'; but we can not be certain that this title is as old as the book. Such a title would sufficiently explain the fact that in the thirteenth century the book was already known as the ' Summa quae vocatur Glaunvile'.' From internal evidence we infer that it was written before Henry's death, that is before the 6th of July 1189, and yet that it was not completed before the month of November 1187'. ' Hoveden (ii. 215) under the year 1180 says that Henry appointed as justiciar Banulf Glanvill ' cuius sapientia couditae sunt leges subscriptae quas Anglicanas vocamua.' On this there follow (1) one set of the Leges Willelmi, (2) the Leges Edwardi followed by an Expositio Verborum, (3) the treatise in question, (4) certain assizes of Henry II. We may regard it as certain that GrlanviU did not compose 1 or 2 ; also that the man who composed 3 did not compose 2. The question remains whether Hoveden's ' coudidit leges ' covers all four or is specially attributable to 3, the treatise on the leges Anglicanae. In the former case it must bear a very vague meaning ; it can mean little more than that Glanvill administered English law in accordance with those documents that Hoveden is going to transcribe; the phrase is hardly better than on excuse for the introduction of a mass of legal matter. In the latter case we still have to ask what Hoveden meant by 'oondidit leges.' This would be a strange phrase whereby to describe the compilation of a treatise. In the contemporary Dialogue (ii. 14) it is used of u legislator. The treatise undoubtedly sets forth the law as administered by the royal court under Glanvill's presidency. Hoveden, so it seems to us, means no more than this. " Maitland, Glanvill Eevised, Harvard Law Review, vi. 1. ^ The king of the prologue is obviously Henry. In lib. viii, c. 3 reference is made to a record of 31 October, 1187. CH. v.] The Age of Glanvill. 143 Certainly we can not say that Glanvill was incapable of writing it, for though a book written by a layman would at this time have been an extremely rare thing, we know that Glanvill was not illiterate and could pass remarks on the illiteracy of the English gentry'. It is a more serious objection that during the stormy last years of Henry's reign the faithful and hard- worked justiciar can have had but little leisure for writing books'. To this we must add that the author of the treatise writes not as a statesman but as a lawyer. He speaks not as one in authority, but as one who is keenly interested in the problems of private law and civil procedure, and he is not ashamed to confess that he raises more questions than he can answer. He feels the impulse of scientific curiosity. No doubt Eanulf Glanvill was, like his master, a many-sided man, but his life was a very busy one, and on the whole we can not but think that such a book as this came from the pen of some clerk who had time for reading and for juristic speculations. We should not be surprised if it were the work of Glanvill's kinsman and secretary Hubert Walter, who in his turn was to become a chief justiciar^ The question is interesting rather than im- portant, for though we would gladly know the name of the man who wrote our first classical text-book, it is plain that he was one who was very familiar with the justice done in the king's court during the last years of Henry II. We may go further, we may safely say that it was not written without Glanvill's permission or without Henry's. 1 Mapes, De Nugis, p. 8. 2 According to Eyton, Itinerary, 294-7, Glanvill was in Prance from March until June 1189 ; he then came to England to levy troops and was in France again in July. 3 This suggestion is due to a passage in Braoton (f . 188 b). Half a century after Hubert Walter's death, Bracton wishing to show how fatal it is for a pleader to make mistakes in names, chooses as examples his own name and that of Hubert Walter. Now the name 'Hnbertus Walter! ' was not merely an uncommon name, it was a name of an exceedingly uncommon kind. < Hubertus filius Walteri' would of course be a name of the commonest kind, but the omission of the 'fiiius' is, among men of gentle birth, an almost distinctive mark of a particular family, that to which the great archbishop belonged. Bracton therefore seems to be choosing the rare name of a man who has been dead these fifty years. May he not be coupling with his own name that of his only predecessor in English legal literature, whose book he has been constantly using? However this is no more than a suggestion. For arguments against Glanvill's claim to the treatise, see Hunter, Fines, i. p. xv ; on the other side, FosB, Judges of England, i. 181 ; Liebermann, Einleitung, p. 73. 144 The Age of Glanvill. [bk. i. Roman and The Writer knew aomethinsr of Roman and of canon law. canon law ti , , , in the Perhaps he had read the Institutes ; probably his idea of what a law-book should be had been derived from some one of the many small manuals of romano-canonical procedure that were becoming currents He does not however adopt the arrange- ment of the Institutes as the plan of his treatise and he can not have followed any foreign model very far. The first sentences of his book are a good example of his method: — ' Of pleas some are civil, some are criminal. Again, of criminal pleas some pertain to the crown of our lord the king, others to the sheriffs of the counties. To the king's crown belong these : the crime which in the [Roman] laws is called crimen laesae maiestatis, — as by slaying the king or by sedition against his person or against his government or in his army, — the conceal- ment of treasure trove, breach of his peace, homicide, arson, robbery, rape, forgery and the like.' We have but to contrast these sentences with the parallel passages, if such we may call them, in the Leges Henrici to see the work of the new jurispru- dence ^ The dilemma ' criminal or civil ' is offered to every plea. This is new and has been foreign to English law. In the dis- orderly list of the pleas of the crown a great simplification has been effected : homicide, for example, is now always a plea of the crown, and we can finish the list with a ' si quae sunt similia ' which leaves scope for rationalism. And yet the materials that are used are ancient; the terms which describe the crimen laesae maiestatis are rooted. in the old law. And so throughout ; we have no reason to suspect that the writer is giving us his theories instead of the actual practice of the king's court. What he has borrowed from the new juris- prudence consists first of a few general distinctions, such as that between criminal and civil pleas, that between possessory and proprietary actions — distinctions which are already be- coming well marked outlines in the procedure of the royal court, — and secondly a logical method which we may call dilemmatic. We have to consider — for naturally procedure is placed in the forefront — how an action is carried on. The 1 Much first-hand knowledge of the Boman texts is not to be inferred from an imitation of the opening sentences of the Institutes, from the occurrence of Buoh phrases as 'quod principi plaouit,' ' melior est conditio possidentis,' or from occasional allusions to the ' leges et canoues.' ^ Leg. Hen. c. 10. CH. V.J The Age of Glanvill. 14ft defendant is summoned. Either he appears or he does not appear. If he does not appear, either he sends an excuse or he sends none. If he sends an excuse, it must be of this kind or of that : — and so forth. And at every turn the writer has to consider the wording of those royal writs that are becoming the skeleton of English law. Substantive law comes in incidentally and we are allowed to see that some very elementary problems are still unsolved, for example, that simple problem in the law of primogenitary inheritance that will be raised on king Eichard's death between John and Arthur^ Again there is a great deal of customary law administered in the local courts of which he professes his ignorance I Old rules about wer and wite and hot may still be lurking in out of the way places ; but he says nothing of them. He says nothing of the laga Eadwardi and betrays no acquaintance with those books which have professed to set forth that ancient system. He has no fore- runner. He is concerned only with the ' chief or ' principal ' court of our lord the king, and just because that court is making a common law by way of commentary on royal assizes and royal writs and is not much hampered by custom or even by precedent, — for as yet we have no citation of precedents, no 'case law' — is he able to write his lucid book. It became popular. Many manuscripts of it are yet extant. Seventy years after it was written lawyers were still using it and endeavouring to bring it up to date'. Some one was at pains to translate it from Latin into French*. A version of it known as Regiam Maiestatem became current in Scotland'. We may fairly say that under Henry II. England takes for ^|^* continental literature. 1 Glanvill, vii. 3. 2 Glanvill, Prologus ; xii. 6 ; xiv. 8. 3 Maitland, Glanvill Eevised, Harvard Law Eeview, vi. 1. A second ms. of this revised Glanvill is preserved at Oaius College. * MS. Lansd. 467 : the translator will give the text ' en un commun romaunz sans ryme' ; Camb. Univ. LI. i. 16, f. 100. The version in Camb. Univ. Ee. i. 1 is partly in Latin partly in French. 5 The Eegiam Maiestatem is collated with GlanviU in vol. i. of the Acts of the Parliament of Scotland. Neilson, Trial by Combat, p. 104 : ' Either the Eegiam was compiled in the first half of the thirteenth century, say between 1200 and 1230... or it was compiled from materials of the law of that period.' Glauvill's Treatise was printed by Tottel without date about 1554; later editions were published in 1604, 1673, 1780 ; an English version by Beames in 1812. It will also be found in Houard's Coutumes anglo-normandes and in Phillips's Englisohe Eechtsgesohichte. A new edition is wanted. P. M. 10 146 The Age of Glanvill. [bk. i. a short while the lead among the states of Europe 'iu the production of law and of a national legal literature. No other prince in Europe could have enforced those stringent assizes, and he could not have enforced them in all of his continental dominions. The most in the way of legislation that a king of the French could do, the most that an emperor could do in Germany, was to make for the maintenance^ of the peace rather a treaty with his vassals than a law for his subjects'. No one had been legislating since the last Carlovingians issued the last capitularies; law had been taking the form of multitudinous local customs. The claims of the renovated, the scientific, Roman law were unbounded, but at least north of the Alps it was but beginning to influence the practice of the temporal tribunals. We can not call Glanvill's treatise the earliest text- book of feudal jurisprudence, for at least parts of the Libri Feudorum, the work of Lombard lawyers, belong to the first half of the twelfth century, and some parts of the Assizes of Jerusalem, though not in the form in which they have come down to us, may be older than the English book ; but in the production of such a book England stands well in advance of France and Germany'. Moreover it is noticeable that in France the provinces which are the first to come by written statements of their law are those which have been under Henry's sway. Foremost stands Normandy which in or about the year 1200 has already a brief written custumal, Normandy where ex- chequer rolls are compiled and preserved, and where the judgments of the duke's court are collected by lawyers, and it is not impossible that the second place must be conceded to Touraine or Anjou'. 1 What is accounted the most ancient ordinance of a French king comes from Louis VII. in 1155: it establishes a 'peace' for ten years: Viollet, Histoire du droit civil fraufais, p. 152. From Germany also we have as yet merely Laudfriedensgesetze which strive to set limits to private war : Schroder D. E. G. p. 614. 2 The Libri Feudorum in their present' state are a composite work, some parts of which may even go back' to the last years of the eleventh century : an edition by K. Lehmann is appearing in parts. The Assises for the Gour des Bourgeois were compiled, it is said, between 1173 and 1180, a few years before Glanvill's treatise : Viollet, p. 170 ; Brunner in Holtzendorff's Enoyklopadie, p. 310. The Assises for the Haute Cour are of later date. ' The most notable French law books are (1) the first part (Brunner's Tr&s anoienne contume) of (Tardifs) Tr^s ancien ooutumier de Normandie, com- piled circ. 1200; (2) the second part of the same work, ciro. 1220; (3) the CH. v.] The Age of Glanvill. 147 It IS a well known doctrine not yet obsolete among us that The limit of legal memory. our legal memory is limited by the date of Richard I.'s corona- ° ^^^ tion. The origin of this doctrine is to be found in certain statutes of Edward I.'s reign\ Probably this date was then chosen because it was just possible that a living man should have been told by his father of what that father had seen in the year 1189, and in a proprietary action for land the de- mandant's champion was allowed to speak of what his father had seen. And yet had Edward and his parliament been concerned to mark a boundary beyond which the history of English law could not be profitably traced for practical pur- poses, they could hardly have hit upon a better date than the 3rd of September 1189. The restless Henry had gone to his rest ; his great reforms were beginning to take effect ; our first classical text-book had just been written; the strong central court was doing justice term after term on a large scale ; it was beginning to have a written memory which would endure for all ages in the form of a magnificent series of judicial records. Our extant plea rolls go back to the year 1194, the great series of the 'feet of fines' (documents which tell us of the compromises, the final concords, made in the king's court, documents which tell us also who is sitting in the king's court day by day and what justices are travelliag through the country) begins in 1195. The chancery then takes up the tale ; all that goes on therein is punctually recorded upon the charter, patent, close and fine rolls. The historian of law and constifcu- Grand ooutumier de Normandie, oiro. 1270-5 ; (4) a custumal of Touraine- Anjou, 1246 ; (5) a custumal of the Orleanais, from the first half of the thirteenth century; (6) the so-called Etablissements de Saint Louis (circ. 1273), a text-book which takes' up into itself the works here designated as 4 and 5 ; (7) the Couseil de Pierre de Fontaines, circ. 1253, from the Vermandois, highly romanized; (8) the Livre de Jostice et Plet from the Orleanais, circ. 1255; (9) Beaumanoir's Custom of Clermont in the Beauvoisis, shortly before 1283. See Brunner, op. oit., p. 307-15 ; VioUet, op. cit. p. 177-88. In Germany the first law-book is the Sachsenspiegel, 1215-35 ; Schroder, op. cit. p. 622 ; Brunner, op. oit. p. 249. This was soon followed by the Deutsohenspiegel and the so-called Schwabenspiegel. It is by no means impossible that the de- velopment of French law in general was quickened by the legislative or administrative activity of Henry, Duke of Normandy and Count of Anjou ; the practice of enrolling pleas seems to spread outwards from Normandy and with it the assize of novel disseisin. Luchaire, Manuel des institutions, p. 568 : ' I'usage des rouleaux d'arr6ts,.d'origine anglo-normande. ' 1 Stat. West. I. (1275) c. 39 ; Statutes of Quo Waranto (1289-90). 10—2 148 The Age of Glanvill. [bk. i. tion has no longer to complain of a dearth of authentic materials; he is overwhelmed by them'. Richard's Richard's reign, despite the exciting political struggles which aX's*"^ filled its first years, was on the whole a time of steady if oppressive government, and the same may be said of so much of John's reign as had elapsed before he quarrelled with the church. The system created by Henry II. was so strong that it would do its work though the king was an absentee. Term Thecentrai after term at least from 1194 onwards a strong central court sat ""^' at "Westminster. Until the middle of 1198 its president was the archbishop Hubert Walter, and shortly after he had re- signed the justiciarship he became chancellor. As justiciar he was succeeded by a lay baron Geofifrey Fitz Peter, who held the office until his death in 1213 ; he is one of the first of English laymen who is famed for his knowledge of law'^ Another layman who comes to the front as a great judge is Simon PateshulP; he may well have been the father of the yet more celebrated Martin PateshuU whom Bracton revered*; already in 1202 the king's justices are officially styled 'justices learned in the law^' But to a very great degree the court was composed of bishops, archdeacons and other clerks ; for example, three successive bishops of London, Richard Fitz Neal, William of S. Mfere Eglise and Eustace of Fauconberg were men who had done much justice for the king. During the reign of Richard, who paid but two brief visits to this country, it is of course an unusual thing to find the king presiding in person, though undoubtedly he did so while he was here ; the court therefore shows no tendency to become two courts. But John liked to do justice, or what he called justice, in person, and ' The earliest of the known plea rolls has lately been published by the Pipe EoU Society ; others of Richard's and John's reigns have been published by the Record Commissioners and the Selden Society. The earliest charter rolls, patent rolls, close rolls have been published by the Record Commissioners. 2 Mat. Par. ii. 558: 'Erat autem firmissima regni columna, ntpote vir generosus, legum peritus, thesauris, redditibus, et omnibus bonis instauratue, omnibus Angliae magnatibus sanguine vel amioitia oonfoederatus.' ' Mat. Par. iii. p. 296 : ' qui quandoque habenas sane moderabatur totius regni iustitiaril.' Ibid. 542 ; ' cuius sapientia aliquando tota Anglia regebatur.' ' See Baker's History of Northamptonshire, i. 267. He certainly was the father of Hugh PateshuU who was for a while treasurer to Henry IH. and became bishop of Lichfield. Simon had a clerk called Martin ; Select Pleas of the Crown (Seld. Soc), pi. 18. ^ Select Pleas of the Crown, pi. 34. CH. v.] The Age of Glanvill. 149 during his reign he was often travelling about the country with one party of judges in his train while another party of judges headed by the chief justiciar was seated on the Bench at West- minster^. The permanent central tribunal is beginning to split itself into two tribunals one of which follows the king while the other remains at the Bench, which will hereafter be known as the Common Bench, and a series of small changes is completing the severance between the court and the exchequer. But at present all these arrangements are of a temporary character. The counties also were visited from time to time by itinerant Itinerant justices. Apparently they were sometimes armed with ampler and sometimes with less ample powers. There was a great eyre in 1194 and the articles issued to the justices on that occasion are the most important edict of the period^. There was little that we could call legislation ; an ordinance of 1195 Legisla- enforced the ancient rules for the pursuit of malefactors'; in ""*' 1197 an assize of measures was issued^ in 1205 an assize of money'; Richard's curious laws for the fleet of crusaders, under which thieves are tarred and feathered, deserve a passing word", and ordinances of John's reign began the extension of English law over those parts of Ireland which were subject to his power'. But it was rather by decisions of the courts and by writs penned in the chancery that English law was being constructed. A comparison of a collection of formulas which Henry III. sent to the Irish chancery in 1227 with Glanvill's treatise shows us that the number of writs which were to be had as of course, had grown within the intervening forty years'. A new form of action might be easily created. A few words said by the chancellor to his clerks — ' Such writs as this are for the future to be issued as of course ' — would be as effectual as the most solemn legislation °. As yet there would be no jealousy between the justices and the chancellor, nor would they easily be induced to quash his writs. 1 Select Pleas of the Crown, pp. xii. — xvii. 2 Stubbs, Select Charters ; EoUa of the King's Court (Pipe Eoll Soc), vol. i. ' Select Charters, Edictum Eegium ; Hoveden, iii. 299. * Hoveden, iv. 33. '^ Bot. Pat. Joh. p. 54. « Gesta Henrioi (Benedict), ii. 110. i Bot. Pat. Joh. p. 47. 8 This Irish Begister of Writs is described in Harvard Law Eeview, iii. 110. The MS. is Cotton, Julius, D. 11. 8 Bot. Claus. Joh. p. 32. A writ of 1205 which in technical terms is ' a writ of entry sur disseisin in the per' has against it the note 'Hoc breve de cetero erit de cursu.' 150 The Age of Glanvill. [bk. i. The Great It is not for US here to relate the events which led to the exaction and grant of the Great Charter, to repeat its clauses, or even to comment on all the general characteristics of that many-sided instrument. In form a donation, a feudal grant of franchises and liberties freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, a treaty which threatens him with the loss of his land if he will not abide by its terms, it is also a long and miscellaneous code of laws\ Of course it is not long when compared with a statute of the eighteenth century ; more words than it contains have often been spent upon some trifling detail. But regard being had to its date, it is a lengthy document ^ Every one of its brief sentences is aimed at some different object and is full of future law. The relative importance of its various clauses historians will measure by various standards. It is a great thing that the king should be forced to promise that no scutage shall be levied save by the common counsel of the realm and that an attempt should be made to define the national assembly^. It is a great thing that he should be forced to say 'No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any wise destroyed, save by the lawful judgment of his peers or the law of the land*.' But events will show that some of these celebrated clauses are premature, while others are vague and can be eluded. In the end. the very definite promises about smaller matters — promises which are also laws— are perhaps of greater value. Precise limits are set to royal claims in strict terms of money, time and space : — the relief for a knight's fee is not to exceed one hundred shillings ; the king will hold the felon's land for a year and a day and no longer ; all weirs in the Thames, in the Medway or elsewhere in England, save along the coast of the sea, shall be destroyed ^ Such provisions can be enforced by 1 Charter 1215, o. 1 : ' Conoessimus etiam omnibus liberis hominibus regni nostri, pro nobis et lieredibus nostris in perpetuum, omnes libertates sub- seriptas, habendas et tenendas eis et heredibus suis de nobis et Jieredibus nostris.' By o. 61 power is given the twenty-five barons to distrain the king 'per captionem castrorum, terrarum, possessionum et aliis modis qnibus poterunt...salva persona nostra et reginae nostrae et liberorum nostrorum.' ' It seems possible that already in 1213 John had sealed a charter of liberties. See the document printed by Bound, Engl. Hist. Eeview, viii. 288, and an article by Prothero in a later number of the same review. 3 Charter, 1215, «. 12, 14. * Ibid. c. 39. ^ Ibid. c. 2, 32, 38. CH. V.J The Age of Glanvill. 15 L courts of law, which can hardly enforce against the king his covenant that he will not sell or delay or deny justice and that he will appoint as judges only those who know the law^ On the whole the charter contains little that is absolutely Eestora- new. It is restorative. John in these last years has been raSer of breaking the law ; therefore the law must be defined and set in thecharter, writing. In several instances we can prove that the rule that is laid down is one that was observed during the early part of his reign'^. In the main the reforms of Henry II. 's day are ac- cepted and are made a basis for the treaty. So successful have the possessory assizes been, that men will not now be content unless four times in every year two royal justices come into every county for the purpose of enforcing them'. In a few cases there is even retrogression. Every class of men is to be conciliated. The vague large promise that the church of England shall be free, is destined to arouse hopes that have been dormant and hopes that can not be fulfilled*. The claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions relating to the lands which are held of him, is acknowledged ; Henry II. would hardly have been forced into such an acknowledgment, and it does immeasurable harm to the form of English law, for lawyers and royal justices will soon be inventing elaborate devices for circumventing a principle which they can not openly attacks Even in the most famous words of the charter we may detect a feudal claim which will only cease to be dangerous, when in course of time men have distorted its meaning: — a man is entitled to the judgment of his peers ; the king's justices are no peers for earls or barons. .. 1 Charter, 1215, c. 40, 45. 2 For instance c. 54 : ' NuUus capiatur neo imprisonetur propter appellum feminae de morte alterius quam viri sui'; Select Pleas of the Crown, pi. 32 (1202): 'nullum est appellum eo quod femina nou habet appellum versus aUquem nisi de morte viri sui vel de rape' The rule was akeady law in Henry n.'s day; Glanvill, xiv. c. 1, 3, 6. 3 Charter, c. 18. * Charter, o. 1 : ' ecclesia AngUcana libera sit et habeat iura sua Integra et libertates suas illaesas.' s Ibid. 0. 34 : ' Breve quod vooatur Praecipe de cetero non fiat alicui de aliquo tenemento uude liber homo amittere possit curiam suam.' Glanvill, i. 5, allows the king to issue this writ whenever he pleases. Had this prerogative been maintained, the horrible tangle of our ' real actions,' our ' writs of entry' and so forth, would never have perplexed us. 152 The Age of Glanvill. [bk. i. Foreigu merchants may freely come and go; they may dwell here and buy and sell ; yes, but all cities and boroughs are to enjoy all their franchises and free customs, and often enough in the coming centuries they will assert that their dearest franchise is that of excludiag or oppressing the foreigner^ And yet with all its faults this document becomes and rightly becomes a sacred text, the nearest approach to an irrepealable, 'funda- mental statute ' that England has ever had. In age after age a confirmation of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering, and this when some of its clauses, at least in their original meaning, have become hopelessly antiquated. For in brief it means this, that the king is and shall be below the law^ 1 Charter, c. 41, 13. ■-' In after days it was possible for men to worship the words ' nisi per legale iudieium parium suorum vel per legem terrae' (cap. 39), because it was possible to misunderstand them. In passing a commentator should observe that in medieval Latin vel will often stand for and. As the writer of the Dialogus (ii. 1) says, it can be used subdisiunctive. Often it is like the of our mercantile documents. The wording of the clause leaves quite open the question whether a man can ever be imprisoned or disseised by the law of the land without having had the judgment of his peers. In the second place it is now generally admitted that the phrase iudieium parium does not point to trial by jury. To call the verdict of recognitors a judgment, would have been as gross a blunder in 1215 as it would be at the present time. See Select Pleas in Manorial Courts (Selden Soc), p. Ixvii. Thirdly there can hardly be a doubt that this clause expresses a claim by the barons for a tribunal of men of baronial rank which shall try even the civil causes in which barons are concerned ; we shall see hereafter that they certainly wished for such a tribunal. The spirit of the clause is excellently expressed by a passage in the laws ascribed to David of Scotland : Acts of Parliament, vol. i. p. 318 : 'No man shall be judged by his inferior who is not his peer ; the earl shall be judged by the earl, the baron by the baron, the vavassor by the vavassor, the burgess by the burgess ; but an inferior may be judged by a superior.' Some of John's justices were certainly not of baronial rank. Just at this same moment the French magnates also were striving for a court of peers; Luchaire, Manuel des institutions, p. 560 ; they did not want trial by jury. CHAPTER VI. THE AGE OP BRACTON. The reign of ^enrjJII. is in the history of our law an age Keign of of rapid, but steady and permanent growth. At the end of that period most of the main outlines of our ' common' or unenacted law have been drawn for good and all; the subsequent centuries will be able to do little more than to fill in the details of a scheme which is set before them as unalterable. It is difficult for any historian not to take a side in the great struggle which fills the reign, the simmering discontent, the loud debate and the open rebellion, and the side that he takes will probably not be that of the feeble, wilful and faithless king. But even at the worst of times law was steadily growing. Henry's tyranny was the tyranny of one who had a mighty legal system under his control; it was enforced by legal processes, by judg- ments that the courts delivered, by writs that the courts upheld. And on the other side there was but little lawlessness. Not only was it in the name of law that the nation rose against the king, but no serious attempt was made to undo the work of the king's courts and the king's chancery. If only the nation at large, the imiversitas regni, could obtain some share in the control over the great machine, its pressure might be patiently borne. But leaving the political and constitutional events of the reign for others, we, placing ourselves at the end, will make a brief survey of what has been done in the realm of law. Our English lawyers have no philosophy of law, nor have General they pursued very far the question. How does law, or a law, come into being ? The opening chapters of Justinian's Institutes were 154 The Age of Bracton. [bk. i. well known ; the sentences which define iustitia, iurisprudentia, ius naturale, ius gentium, ius civile and so forth were copied or imitated ; but any real knowledge of Roman history being still in the remote future, these sentences served as a check upon, rather than as an incentive to, rational speculation. In practice there is no careful discrimination between ius and lex; the whole mass of legal rules enforced by the English temporal courts can be indicated by such phrases as ius regni^, lex regni^, lex terrae^, ius et consuetudo regni\ lex et consuetudo, leges et consuetudines, lei de la terre, lei et dreit de la terreK Of course ius, lex and consuetudo are not in all contexts exactly equivalent words ; ius and the French dreit often stand for 'a right*'; lex and lei are technically used to signify the various modes of proof such as the oath, the ordeal, the judicial combat'; Glanvill and Bracton make some apology for giving the name leges to the unwritten laws of England^; Bracton can upon occasion contrast consuetudo with lex^. Of course too it is necessary at times to distinguish a new rule lately established by some authoritative act, from the old rules which are conceived as having been in force from time immemorial. The rule in question has its origin in a royal decree or edict, in a novella constitutio of the princeps^", in ^ Glanvill, vii. 1 : ' seouudum ius regni.' 2 Charter, 1215, c. 45 : ' qui soiant legem regni.' 3 Charter, 1215, e. 39 : ' per legale iudicium parium suorum vel per legem terrae.' Braet. f. 128 b : ' utlagatus rite et secundum legem terrae.' Ibid, f. 127 b : ' ante aetatem duodeoim annorum non erit quis' sub lege, et prius extra legem poni non poterit.' " Ibid. f. 147 : ' secundum/^legem Eomanorum, Francorum et Anglorum.' / * Glanvill, vii. 12 : ' secundum ius et consuetudinem regni.' 5 Prov. Oxford (Select Charters) : ' La haute justice a poer de amender les tors... solum lei et dreit de la tere. E les brefs seient pledez solum lei de la tere e en leus deues.' * Thus in the count on a writ of right ' Peto terram ut ius et hereditatem meam... pater meus fuit seisitus ut de iure...et de eo desoendit ius...et quod hoc est ius meum offero probare.' ' Dialogus, ii. 7: 'leges oandentis ferri vel aquae'; Glanvill, xiv. 2: 'per legem apparentem se purgare'; Charter, 1215, o. 38: 'NuUus balhvus ponat... aliquem ad legem simplici loqiiela sua.' 8 Glanvill, Prologus : ' Leges namque Anglicanas, licet non soriptas, leges appeUari non videtur absurdum ' ; Bracton, f. 1. 8 Bracton, f. 1 : ' Habent enim Anglici plurima ex consuetudine quae non habent ex lege.' 10 Dialogus, ii. 21: 'Deorevit enim rex illustris'; Hoveden, iii. 299: 'Edictum regium.' Dialogus, ii. 1 : 'ex novella oonstitutione, hoc est post tempora regis Henrici primi.' Glanvill, ii. 7: 'Est autem magna assisa regale quoddam beneficium, dementia principis de oonsilio prooerum populis indultum...legalis CH. VI. J The Age of Bracton. 155 ' provisions ' made by the king with the common counsel of his prelates and nobles, in an assize, or when we speak in English in an 'isetnysse^' — the word 'statute' is hardly yet in common use^ — one may even have to say of some unprincipled rule that it is to be explained only by reference to the will of the legisla- tor^ But as yet there is no definite general theory as to the relation between enacted and unenacted law, the relation between law and custom, the relation between law as it is and law as it ought to be. The assizes of Henry II. have worked themselves into the mass of unenacted law and their text seems already to be forgotten. On the other hand the writer of Edward I.'s day, whom we call Britton, can represent the whole law as statutory ; it all proceeds from the king's mouth. The king's justices seem to claim a certain power of improving the law, but they may not change the law*. The king without the consent of a national assembly may issue new writs which go beyond the law, but not new writs which go against the law^ The term common law (ius commune, lex communis, commun Common dreit, commune lei) is not as yet a term frequent in the mouths *^' of our temporal lawyers. On the other hand ius commune is a phrase well known to the canonists ; they use it to distinguish the general and ordinary law of the universal church both from any rules peculiar to this or that national or provincial church, and from those papal privilegia which are always giving rise to ecclesiastical litigation. Two examples may suffice. Innocent III. tells the bishops of London and Ely that the guardianship of vacant churches in the diocese of Canterbury belongs to the archdeacon both by common law and by the general custom of the English church^ In 1218 papal delegates report that the ista institutio [al. regalis ista constitutio].' Bracton, f. 96: 'sed nova super- veniente gratia et provisione.' 1 Proclamation of the king's acceptance of the Provisions of Oxford (Select Charters), ' and to werian >o isetnesses >set beon imakede.' 2 The laws of Merton and Marlborough though they are retrospectively caUed statutes called themselves provisions. 2 Dialogus, ii. 10 : ' Propter solam regis assiaam sic esse cognoscas ; nee enim est qui regiae constitutioni, quae pro bono paois fit, obviare praesumat.' * Bracton, f. 1 b : the contrast is between mutari and in melius converti. 5 Bracton, f. 414 b ; the contrast is between a writ which is contra ius and one which is praeter ius but at the same time rationi consonum et non iuri contrarium. 8 e. 32, X. 2, 20: 'tarn de communi iure, quam de oonsuetudine general! Auglicanae ecclesiae.' 156 The Age of Bracton. [bk. i. bishop of Salisbury asserts a right to the church of Malmesbury both under the common law and by virtue of a papal privilege^- But in truth the phrase was usual enough among the canonists and they had good enough authority in ancient Roman texts for the use that they made of it^ From the ecclesiastical it would easily pass into the secular courts. A bishop of Salisbury in 1252 tells the pope how, acting as a papal delegate, he has decided that the common law makes in favour of the rector of one church and against the vicar of another ; the common law of which he speaks is the common law of the catholic church ; but this bishop is no other than William of York who owes his see to the good service that he has done as a royal justice'. In connexion with English temporal affairs we may indeed find the term ius commune in the Dial'ogue on the Exchequer : the forest laws which are the outcome of the king's mere will and pleasure can be contrasted with the common law of the realm*. A century later, in Edward I.'s day, we frequently find it, though lex communis (commune lei) has by this time become the more usual phrase. The common law can then be contrasted with statute law; still more often it is contrasted with royal preroga- tive ; it can also be contrasted with local custom ; in short it may be contrasted with whatever is particular, extraordinary, special, with 'specialty' (aliquid speciale, especialt^\ When Bracton speaks of common law or common right — and this he does but very rarely — it is to distinguish fi"om rights which have their origin in some specially worded contract or donation, ' Sarum Charters, p. 89. 2 Thus in Cod. Theod. xvi. 5, c. 23 is a constitution repealing an earlier law which had placed a certain class of heretics under disabilities. 'Vivant lure communi,' it says, and this we can best render by ' They are to live under the common law,' i.e. the ordinary law. ^ Sarum Charters, p. 320 : 'Nos vero... ius commune pro ecclesia de Presohut faciens considerantes.' * Dialogus, i. 11 : ' Legibus quidem propriis subsistit ; quas non communi regni iure, sed voluntaria principum institutions subuixaa dieunt.' lb. ii. 22 : ' communis lex ' appears. " Thus Y. B. 21-2 Edw. I. contrasts common law with statute (p. 55-6, 419), with local custom (p. 213, 287), with prerogative (p. 406), with the law merchant (p. 459), with 'special law' (p. 71). P. Q. W. 681: 'videtur iusticiariis quod dominus Eex placitare potest per breve magis conveniens legi communi quam hoc breve.' Eot. Pari. i. 47 (1290): 'Perquirat sibi per legem oommunem.' Articuli super Cartas (28 Edw. I.) : ' ou remedie ne fust avant par la commune ley...nul bref que touche la commune lei.' Y. B. 20-1 Edw. I. p. 55 : ' You put forward no espessyalte.' CH. VI.] TJie Age of Bracton. 157 those rights that are given to all men by the law of the land\ It is not until there is a considerable mass of enacted law, until the king's exceptional privileges are being defined, until the place which local custom is to have in the legal system is being fixed, that the term becomes a very useful one, and it is long before the lawyers of the temporal courts will bear the title ' common lawyers,' or oppose 'the common law' to 'the law of holy church I' The mass of enacted law is as yet by no means heavy. As statute we have said above', the assizes of the twelfth century seem to be already regarded as part of the unenacted ancient law. No one is at pains to preserve their text. As to the Anglo-Saxon dooms, though men are still at times copying and tampering with the Latin versions of them, they are practically dead and will remain almost unknown until in the sixteenth century William Lambard unearths them as antiquarian curiosities'. We have in manuscript very many collections of statutes transcribed in the days of the two first Edwards : they seldom, if ever, go behind Magna Carta. That Charter takes its place as the first chapter of the enacted law ; but, as is well known, its text is not exactly that which John sealed at Runnymead in The char- 1215. Important changes were made when it was reissued in 1216 ; other important changes were made in 1217, a few minor 1 Bracton, f. 17 b: ' Modus enim legem dat donation! et modus tenendus est contra ius commune et contra legem, quia modus et conventio vincunt legem.., Bene poterit donator... legem imponere donationi... contra legem terrae.' Ibid. 19 b : ' Item poterit conditio impedire desoensum ad proprios beredes contra ius commune.' Ibid. 48 b : ' Item poterit donator ex speciali eonventioue contra ius commune conditionem snam meliorem facere in causa donationis. ' ^ Early instances of the use of tbe term in a more or less technical sense are these. Poedera, i. 266, a writ of 1246 : ' Eex vult quod omnia brevia de communi iure quae curmnt in Anglia similiter currant in Hibernia.' Provisions of Oxford (1259): 'de sectis autem quae...subtractae fuerunt currat lex communis (curge la commune lei)': — 'babeat rationabilem summonitionem secundum communem legem terrae (solum la commune lei).' According to a story told in the Burton Annals, p. 210, when John asked the papal legates what they wanted, they replied 'Nil nisi ius commune'; this seems to mean 'Nothing but common justice.' See further as to the history of this phrase, Clark, Practical Jurisprudence, p. 70. ^ The Leges Edwardi and one set of the Leges WiUelmi were still being amplified by imaginative persons, who wished to show how sheriffs were elected in the good old days, and how the Scots were subject to the English king. Bracton, f. 134 b, quotes historical matter from the Leges Edwardi ; and in his work (f. 147) there is an addieio which seems to refer to some laws of jUthelstan. 158 The Age of Br acton. [bk. i. changes in 1225 ; the charter granted by Henry in 1225, when he had lately attained his majority, became the Magna Carta of future times^ He had to confirm it repeatedly. These re- peated confirmations tell us how hard it is to bind the king by law. The pages of the chroniclers are full of complaints that the terms of the charter are not observed. These complaints, when they become specific, usually refer to the articles which gave to the churches the right to elect their prelates. If on the one hand the king is apt to regard the charter as a mere promise from which, if this be necessary, the pope will absolve him, on the other hand efforts are made to convert every one of its clauses into a fundamental, irrepealable law. In 1253 with solemn ceremonial the anathema was launched, not merely against all who should break the charter, but also against all who should take any part whatever, even the humble part of mere transcribers, in making or promulgating or enforcing any statutes contrary to the charter I This theoretical sanctity and this practical insecurity are shared with ' the Great Charter of Liberties' by the Charter of the Forest, which was issued in 1217. Provisions The first Set of laws which in later days usually bears the West- ' name of 'statute' is the Provisions of Merton issued by the ^™ Marl- ^i^& ^^^^^ *^^ consent of the prelates and nobles in 1236 on the borough, occasion of his queen's coronation; a few brief clauses amend the law about divers miscellaneous matters'. From the time of storm and stress we have the Provisions of Westminster to which the king gave a rehictant consent in 1259*. He did not hold himself bound by them; they never became a well es- tablished part of the law of the land, but in 1267, when the revolutionary period was at an end, almost all of them were reenacted with the consent of great and small as the Provisions or Statute of Marlborough". These four documents, the two 1 After 1225 but before Edward's confirmation in 1297 a change was made in, or crept into, the clause which defines the amount of the relief; the baron's relief was reduced from 100 pounds to 100 marks. See Bdmont, Ohartes des libertfis anglaises, pp. xxxi., 47-8. The text of the various editions can be best compared in this excellent book. ^ Statutes of the Eealm, i. 6. ' Statutes, i. 1 ; Bracton's Note Book, i. 104. * Statutes, i. 8. " Stat. Marlb. (Statutes, i. 19) : ' convooatis discreoioribus eiusdem regni tam ex maioribus quam minoribus, provisum est et statutum ac concorditer CH. VI.] The Age of Bracton. 159 Chapters, the Provisions of Merton and of Marlborough, are the only documents of Henry's reign which are generally regarded in after ages as parts of the written law, though to these we may perhaps add the Dictum of Kenilworth issued in 1266 (an essentially temporary provision relating to the punishment of the insurgents'), and a writ of 1256 which has sometimes been dignified by the title 'the Statute of Leap Year'; it deals with a small matter, the computation of the ' excrescent' day of the bissextile ^ But it is only in retrospect that the quantity of legislation that there has been appears so small. As yet there is no easily applicable external test by which we can distinguish the solemn statute from the less solemn ordinance. From Henry's reign we have neither a ' statute roll' nor any 'rolls of parliament' ; and we have no reason to believe that any such records were kept'. Copies of the two charters were sent about the country ; the only authoritative record that we have of the Provisions of Merton is a writ upon the close roll; the only authoritative records that we have of the Provisions of West- minster are writs upon the close and patent rolls, and upon those rolls and the judicial rolls of the king's court we find traces of other legislative acts, which for one reason or another did not permanently gain the character of statutes*. ordinatum.' There seems no reason -why we should any longer speak of Marlbridge when we mean Marlborough; ' Marlbridge ' is but a stupid mis- representation of the French form Marleberge. 1 Statutes of the Eeahn, i. 12. ^ Ibid. p. 7; Braoton's Note Book,'i. 43. 5 The earliest statute roll now extant begins with the Statute of Gloucester, 1278. What is now its topmost membrane shows distinct signs of having been preceded by another membrane, which may have contained the Statute of Westminster I. (1275) and other matters. Our first parliament roll comes from 1290. * Among these may be reckoned the ordinance of 1219 relating to the abolition of the ordeal, Foedera, i. 154; the ' constitution ' of 1234 relating to the holding of the local courts, preserved in the Annals of Dunstaple, p. 139 ; the ordinance of 1234 relating to special bastardy which (see Braoton's Note Book, i. p. 104) is on the Coram Eege Eoll ; an ordinance of 1283 relating to the conservation of the peace, preserved on the Close Eoll and printed in the Select Charters ; a statute of limitation from 1287 which (see Note Book, i. p. 106) is usually but wrongly regarded as part of the Provisions of Merton ; an ordinance about warranty made in 1251 on the dedication of the Abbey of Hailes and mentioned by Bracton, f. 382 b; ah ordinance of 1258 relating to watch and ward preserved by Matthew Paris and printed in the Select Charters ; an assize of bread preserved in the Annals of Burton, p. 375. Besides all this Matthew Paris mentions a considerable number of acts of a legislative kind, e.g. vol. v. 160 The Age of Bracton. [bk. i. Ordinance And if merely formal tests fail us, so also will more material tute. tests. Of course we can not in dealing with Henry's day insist that a statute must be enacted with the consent of the three estates of the realm ; we may be certain that the third estate was not represented at Merton and may gravely doubt whether it was represented at Marlborough. On the other hand we may take it as generally admitted that the king can not by his mere word make law. If he legislates, this must be by the counsel of the prelates and nobles; even if he ordains, this should be by the counsel or at least with the witness of his habitual counsel- lors^ But it is not easy to mark off the province of ordinances from the province of laws. In 1253 Henry issued an ordinance for the maintenance of the peace; it contained little, if anything, that was very new. Matthew Paris tells us that he wished to add to it something that was new, foreign, Savoyard. He wished to give to one who was robbed with impunity, an action against those whose duty it was to pursue the robbers ; apparently he wished to do what his son did successfully by the statute of Winchester. But he had to withdraw this part of his decree because so large a change in the law could not be made without the common assent of the baronage". But between large changes and small, between changes and ameliora- tions, between laws and rules of procedure, no accurate lines could be drawn. The king That the king is below the law is a doctrine which even a law. royal justice may fearlessly proclaim^ The theory that in every state there must be some man or definite body of men above the law, some ' sovereign ' without duties and without rights, would have been rejected. Had it been accepted in the thirteenth century, the English kingship must have become an absolute monarchy, for nowhere else than in the person of the king could the requisite 'sovereignty' have been found. But, for one thing, p. 15, 18, an edict of 1248 relating to the coinage ; p. 35, an edict relating to vengeance upon adulterers. The rolls of Henry's day have yet to be carefully searched for the remains of legislation, ' Eob. Grosseteste Epistolae, p. 96 : Grosseteste to Ealeigh : ' nee tain idiota sum quod credam ad aliouius suggestionem te vel alitlm sine principis et magnatum consilio posse leges condere vel commutare. ' 2 The ordinance is printed in the Select Charters. Mat. Par. v. 369 : ' praesertim cum tanta legis permutatio sine communi assensu barnagii constitui minime valuisset.' ' Bracton, f. 5 b, 107 ; Note Book, j. 29—33. CH. VI. j The Age of Bracton. 161 nobody supposed that the king even with the consent of the English prelates and barons could alter the common law of the catholic church. If the theory of sovereignty popular among Englishmen of our own day be pressed upon the reluctant middle ages, the whole of Western Christendom must be treated as one stated Theology can be brought in to explain or to conceal any diflficulty that there may be in the conception of a king, who though subject to no man, is subject to the law: — God is subject fco law and has even made himself subject to the law for man^. The practical question is whether there is any mode in which the law can be enforced against the king. That no ordinary process of his courts will touch him is an admitted fact'. For a while men speculate as to whether in an extreme case the Earl of Chester as count of the palace may not have some coercive power over the king*. A more acceptable solution, especially when these palatine counts have died out, is that the incorporate realm represented by the baronage may judge the king in his own court, if the worst come to the worst °. But there is no established orderly method whereby this can be accomplished, and the right to restrain an erring king, a king who should be God's vicar, but behaves as the devil's vicar", is rather a right of revolution, a right to defy a faithless lord and to make war upon him, than a right that can be enforced in form of law. The result of the barons' war is to demonstrate that though the king is not above the law, the law has no means of punishing him, and no direct means of compelling him to make redress for the wrongs that he has done. The unenacted part — and this is the great bulk — of the law xinenacted custom. 1 Sidgwick, Elements of Politics, p. 21. " Kingaford, Song of Lewes, pp. 103-4, 113-8. ' This matter will be discussed below when we speak of the King and the Crown. * Mat. Par. iii. 337 — 8. At Henry's coronation the earl carries the sword of St. Edward ' in siguum quod comes est palatii et regem si oberret habeat de iure potestatem cohibendi.' It- seems not impossible that this theory, which can not have had any warrant in English precedents, was borrowed from Germany, where men were asserting that a court presided over by the Pfalzgraf might even adjudge the Emperor to deatfi ; Schroder, Lehrbuoh der deutschen Eechtsgesohichte, 465. ' Bracton, f. 171 b. The question whether the violent passage on f. 34 comes from Bracton, has been discussed elsewhere ; see Note Book, i. 29 — 33. ' Bracton, f. 107 b: 'Dum facit iustitiam, vicarius est Begis Eterni, minister autem diaboli dum declinat ad iniuriam.' P. M. 11 162 The Age of Bracton. [bk. i. seems to be conceived as custom (consioetudo). The most important of all customs is the custom of the king's court. The custom may be extended by analogical reasoning; one may argue from one case to another case which is similar though not precisely similar'. On the other hand we should be assigning far too early a date for our modern ideas, if we supposed that the law of the thirteenth century was already 'case-law,' that a previous judgment was regarded as ' a binding authority ' ; it would but be an illustration of the custom of the court. Bracton indeed achieved the marvellous feat of citing some five hundred cases from the judicial rolls. But Bracton stands quite alone ; his successors Fleta and Britton abbreviate his work by omitting the citations. By some piece of good fortune Bracton, a royal justice, obtained possession of a large number of rolls. But the ordinary litigant or his advocate would have had no opportunity of searching the rolls, and those who know what the rolls are like will feel safe in saying that even the king's justices can not have made a habit of searching them for principles of law. Again we may see that Bracton had not our modem notions of 'authority.' He has told us how he set himself to peruse the ancient judgments of the just, because his ignorant and uneducated contemporaries were but too often misrepresenting the law; he appealed from them to the great men of the past, to Martin Pateshull and William Raleigh ^ On rare occasions specific precedents {exempla) may have been alleged in court ^; in Edward I.'s day the pleaders are already 1 Braoton, f. 1 b : 'Si autem aliqua nova et inconsueta emerserint et quae prius usitata non fuerint in regno, si tamen Bimilia eyenerint, per simile iudiceutur, cum bona sit occasio a similibus procedere ad similia. Si autem talia nunquam prius evenerint, et obsourtim et difficile sit eorum iudicinm, tunc ponantur iudicia in respectnm usque ad magnam curiam, ut ibi per consilium curiae termiuentur.' Thus in a quite unprecedented case the court may have to declare for law what, as Bracton almost admits, has not as yet been law. For this purpose the court should take the form of a great assembly of prelates and barons. In the above passage Bracton alludes to D. 1. 3. 13. 2 Braeton, f. 1, 2. " Note Book, pi. 1213: the Earl of Chester appeals to cases concerning other palatine earls. Ibid, pi, 1227 : in the exceedingly important case raising the question whether a palatinate can be partitioned, the magnates reject foreign precedents; 'nee voluerunt iudicare per exempla usitata in partibus transmarinis.' In 1291 the Earl of Gloucester being concerned in a case which raised an unusual question, asked the king that the rolls of Pateshull (ob. 1229) and of later judges might be searched for precedents, and a precedent was produced from 1248 ; Eot. Pari. i. 66 — 7. Of course the rolls were often CH. VI.] The Age of Bracton. 163 citing and 'distinguishing' previous cases'; but as a general rule the judges, assisted by clerks who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus ; many of them were very experienced men who had worked their way upwards through all the ranks of the king's court and chancery. And so even the knights who were employed to take assizes in their shires, though they had read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and custom ; the diffi- culty is to persuade him that he does not know everything". The custom of the king's court is the custom of England Local cus- and becomes the common law. As to local customs the king's justices will in general phrases express their respect for them'. We see no signs of any consciously conceived desire to root them out*. None the less if they are not being destroyed, their further growth is checked. Especially in all matters of pro- cedure the king's court, which is now obtaining a thorough control over all other courts, is apt to treat its own rules as the only just rules^ A heavy burden of proof is cast upon those who would apply other rules; they must be prepared to show not merely that a local tradition is in their favour, but that this tradition has borne fruit in actual practice and governed the decisions of the local courts". The instances that we get of produced to show that a concrete question was res iudicata ; but this is quite another matter. 1 See e.g. Y. B. 21—2 Edw. I. p. 146. Occasionally the appeal to a precedent is entered on the roll as the substance of the plea : Northumberland Assize Bolls, p. 223. 2 Bracton, f . 1 b : ' licet siut nonnuUi qui de propria scientia praesumentes, quasi nihil iuris ignorent, nolunt alicuius consilium expetere.' •' Bracton, f. 1. * For an instance of a custom that is declared to be unlawful, see Northum- brian Assize Bolls (Surtees Soc), p. 353 : 'ilia consuetudo omnino est contra omnes leges.' " Bracton, f. 329. The procedure of the feudal courts in respect of such matters as summons and essoins may differ from that of the king's court, but as regards warranty, pleading, and battle the rules of the king's court must be observed. * Bracton's Note Book, pi. 834. The suitors of Havering are asked to produce a precedent (exem;plum) for a judgment that they have delivered ; not being able to do this, they are amerced, 11—2 164 The Age of Bracton. [bk. i. customs peculiar to counties or other great tracts of land, such as the episcopal barony of Winchester^ or the honour of Britanny^ are of no very great importance. The law about frankpledge, the law about the presentment of Englishry, may be somewhat differently understood in the various parts of England ; and in the north there prevail certain forms of land tenure which are hardly to be found in the south : — but this is a small matter. The county courts are held under the presi- dency of sheriffs who are in constant correspondence with the king's court and the exchequer and who will ask advice from Westminster when difficult cases come before them'- Every manor will indeed have its own customs and to the unfree men these customs will be very important ; such rights as they have against their lords, save the bare right to life and limb, will be given by these customs and will not be acknowledged by the general law nor sanctioned by the king's court. Still these manorial customs are not nearly so various as we might have expected them to be. If a manorial ' extent ' or custumal be put into our hands, only after a minute examination of it shall we be able to guess whether it comes from the west or from the east, from Somersetshire or from Essex. The great estates of the great nobles have been widely dispersed ; the same steward has travelled throughout England holding all his lord's courts, reducing their procedure to uniformity and completing in a humbler sphere the work of the king's itinerant justices 1 When the time comes for the king's courts to protect that villein tenure which has become copyhold tenure, there will be little difficulty about the establishment of a set of uniform rules which will serve as a 'common law' for copyholds. Within the walls of a chartered borough peculiar customs can grow vigorously, for the charter will serve to protect them against the meddling of the king's justices. The consuetudo of the borough will be the lex of the borough and sometimes it will be solemnly committed to writing^. But even here there is less ' Bracton, f. 85 b : ' licet in quibusdam paitibus et per abusum observetnr in contrarium, sicut in episcopatu Wintoniae'; Note Book, pi. 282. ^ Kote Book, pi. 623 : ' talis est consuetudo in feodo Comitis Britanniae. ' ' Boyal Letters, i. 103. A difficult case having arisen in the county court of Nottingham, the bailiff who held the court advises the sheriff to obtain the opinion of the king's council. ■• Select Pleas in Manorial Courts (Seld. Sec), p. 3. ■' More will be said of tlie borough customs in a later chapter. CH. VI.] The Age of Bracton. 165 variety than we might have looked for. The aspiring town was often content to receive as a privilege the custom of some famous borough, Winchester or Bristol or Oxford, and thence- forward in case of doubt it would send to its mother town for an exposition of the rules that should guide it'. On the whole, the local variations from the general law of the land are of no great moment, and seldom, if ever, can we connect them with ethnical dififerences or with remote history. We can no longer mark off the Danelaw from Mercia or Wessex, we hear of little that is strange from Cornwall or from Cumberland. The strong central power has quietly subdued all things unto itself It has encountered no resistance. No English county ever rebels for the maintenance of its customary law. Kent is somewhat of an exception ; it has a considerable Kentish body of customs ; there is a lex Kantiae\ In Edward I.'s day a written statement of these customs was sanctioned by the .king's justices in eyre'. In the main they are concerned with the maintenance of a peculiar form of land-tenure known as gavelkind. This name seems to tell us that the chief characteristic of that tenure is or has been the payment of gafol, of rent, as distinguished from the performance of military service on the one hand and of agricultural labour on the other*. There is in Kent a large class of land-holders, who are not knights, who are not gentle folk ; they pay rent to their lords ; their tenure is protected by law ; they are not burdened with ' week work.' They are free men ; indeed in Edward I.'s day it is said that every one born in Kent is born free°. The customs of Kent are, at least for the more part, the customs of these gavelkinders ; customs which fall within the province of private law, which regulate the wife's dower and the husband's curtesy, which divide the dead tenant's land among all his sons, showing however a certain preference for the youngest, which determine the procedure that the lord must adopt if his rent be in arrear, and which, contrary to the general law, allow the sons of the hanged felon to inherit from him. Thus the task of 1 Gross, Gild Merchant, i. 259. 2 Bracton's Note Book, pi. 1644 : ' secundum legem Kantlae.' 3 Statutes, i. 223. * Elton, Tenures of Kent, p. 29. In the form gavelingude the word occurs on our earliest plea roll ; Eot. Cur. Eegis (Pipe Boll Soc), p. 43. » Statutes, i. 223 ; Y. B. 30—31 Edw. I. p. 168. 166 The Age of Braxton. [bk. accounting for the lex Kantiae is that of explaining a passage in the social and economic history of England, and a, very difficult passage. There is little in Domesday Book that marks off Kent from the surrounding counties, little indeed to make us think that at the date of the survey it was a peculiarly free county, that it was as free as the shires of the Danelaw^- We shall hardly find an answer to our question in the fact that the churches held wide lands in Kent; church lands are not the lands on which as a general rule we find many freeholders or many free men. No doubt some traits in the Kentish customs may be described as archaic — they enshrine old English pro- verbs, and a legend grew up telling how the men of Kent had made special terms with the Conqueror — but probably we shall do well in looking for the explanation of what really has to be explained to the time which lies on this side of the Conquest*. Kent is no mountain home of liberty, no remote fastness in which the remnant of an ancient race has found refuge ; it is the garden of England, of all English counties the one most exposed to foreign influences. The great roads which join London to the seaboard are the arteries along which flows money, the most destructive solvent of seignorial power. The tillers of Kentish soil can maintain their ancient or obtain new liberties, because their lords have learnt to want money and will rather have current coin than feudal rights. The gavel- kinders are prosperous; they purchase a royal charter from Henry III'. There is general prosperity in Kent : even the knights of the county are anxious that the lex Kantiae should 1 In Domesday Book Kent is distinguished by peculiar land measures, the sullimg and the yoke {jugum). We can however find nothing in the record which in any way suggests that the numerous villani of Kent are in any respect better off than the villani of other counties or that they stand on a par with the sohemanni or the small libere tenentes of Norfolk and Suffolk. See however Kenny, Primogeniture, p. 29. ^ Among the ancient features we may reckon the allotment of the ' aster ' or hearth to the youngest son, and the peculiar nine-fold payment plus a wergild whereby a tenant can redeem land that he has lost by non-payment of rent. The proverb which sends ' the father to the bough and the son to the plough ' seems corrupt. In the oldest versions of it the son goes to the ' lowe, ' the fire, the hearth, the aster ; Note Book, pi. 1644 ; Statutes, i. 223. The oustumal ends with an assertion that the usages which it describes are older than the Conquest. As to the legend of the moving wood of Swanscombe, this first appears at a very late day; Freeman, Norman Conquest, iii. 539. 3 Statutes, i. 225. CH. VI. J The Age of Bracton. 167 be observed'. All classes in the county seem to be bound together by a tie of local patriotism. They feel that they are better off than other Englishmen are''. In course of time there must be 'treatises on gavelkind' and learned books on 'the tenures of Kent,' for when once a district has established an exemption from certain of the ordinary rules of law, the number of the rules from which it is exempt will be apt to grow'. But on the whole the brief Kentish custumal of the thirteenth century is but a small exception to the generality of the common law. English law was by this time recognized as distinctively EngUshry English, and Englishmen were proud of it. From time to time uw."^ ^ rumours went round that the king's detestable favourites were going to introduce foreign novelties from Poitou or from Savoy. In a case for which no English precedent could be found our king's court refused to follow foreign, presumably French, precedents*. But the main contrast to English law was to be found in the leges et canones. Bracton, having probably taken some Italian legist at his word, entertained the belief that in almost all countries the leges scriptae prevailed, and that only England was ruled by unwritten law and custom^ This was an untrue belief, for the Roman jurisprudence was but slowly penetrating into northern France and had hardly touched Germany; but it served to make the great contrast more emphatic — England was not governed by the leges scriptae. All men knew how at the Merton parliament the assembled barons declared with one voice that they would not change the laws of England ^ Perhaps we do well to treat this as an outburst of nationality and conservatism — English law is to be maintained because it is English, for as to the specific question then at issue, namely, whether bastards should be legitimated by the 1 Note Book, pi. 1338, 1644. 2 Observe the first words of the custumal: — 'These are the usages and customs which the community of Kent claims to have in tenements of gavelkind and gavelkind folk.' 8 This is well shown by the establishment at a very late period of a custom to devise gavelkind land by will, a matter fully discussed by Elton, Tenures of Kent, 73—8. * The case as to the partition of the Chester palatinate ; see above, p. 162. 5 Bracton, f. 1. 6 Note Book, i. pp. 104 — 115. We have no authoritative text of this famous resolution ; but the last word of it seems to have been mutare, not mutari. 168 The Age of Bracton. [bk. 1. marriage of their parents, we should hardly have suspected our barons of having a strong and unanimous opinion on so argu- able a point. Curiously enough in the very next year the Norman exchequer decided to follow the church's rule, perhaps by way of showing that despite king Henry's claims, the breach between Normandy and England was finals But it is by no means impossible that the celebrated Nolumus expresses a professional as well as a national conservatism ; at any rate it was no baron but a lawyer, an ecclesiastic, a judge, Bracton's master, William Raleigh, who had to meet the clerical forces and to stand up for English practice as settled in Henry II.'s day by Eichard de Lucy against the laws and canons and consensus of Christendom^. Equity. Of ' equity ' as of a set of rules which can be put beside the rules of 'law,' or of courts whose proper function is the ad- ministration not of law, but of equity, we shall hear nothing for a long time to come. We must however remember, first, that a contrast between aequitas and rigor iuris is already a part of what passes as philosophical jurisprudence, and secondly, that our king's court is according to very ancient tradition a court that can do whatever equity may require. Long ago this principle was asserted by the court of Frankish kings and, at all events since the Conquest, it has been bearing fruit in England ^ It means that the royal tribunal is not so strictly bound by rules that it can not defeat the devices of those who would use legal fbrms for the purposes of chicane; it means also that the justices are in some degree free to consider all the circumstances of those cases that come before them and to adapt the means to the end. In the days of Henry II. and Henry III. the king's court wields discretionary powers such as are not at the command of lowlier courts, and the use of these 1 Delisle, Eecueil de jugements, p. 139 : ' Judioatum est quod ille qui natus fuit ante sponsalia sive post est propinquior heres ad habendam hereditatem patris...si saucta ecclesia approbet maritaginm.' 2 Eob. Grosseteste Epistolae, 76 — 97. Grosseteste (p. 97) writes to Raleigh : ' Induxistis testimonium Eioardi de Luci ; cuius testimonium quantam et qualem habeat comparationem ad testimonia divinae scripturae et canonicae contrarium testificantia, lippis patet et tonsoribus.' The arguments which Grosseteste adduces from the Bible and the law of nature are very curious ; however he seems to expressly disclaim the notion that the king's justices could desert their ungodly precedents in favour of divine and natural law until the law of England had been changed by king and magnates. 8 Brunner, D. E. G. ii. 135—6. :!H. VI. J The Age of Bracton. 169 powers is an' exhibition of ' equity.' Often on the plea rolls we ind it written that some order is made ' by the counsel of the jourt' {de consilio curiae). It is an order that could not be isked for as a mere matter of strict right ; the rigor iuris does aot dictate it — would perhaps refuse it ; but it is made in order that the substantial purposes of the law may be accomplished without ' circuity of action '.' The need of a separate court of 3quity is not yet felt, for the king's court, which is not as yet tampered by many statutes or by accurately formulated ' case law,' can do equity. In the middle of the thirteenth century the high courts The king's bhat do justice in the king's name are rapidly taking what will """"^ ^' long be their final form. When in 1875 p j^ti^prpmo flnnrt »f Judicature once more absorbs them, the Court of King's Bench, bhe Court of Common Pleas, the Court of Exchequer and the Chancery will be able to claim some six centuries of existence as distinct and separate courts. To fix precisely the exact moment at which one court became two or more courts, is perhaps an impossible feat, for ' court,' as our modern statute book would amply prove, is a term that can not easily be defined. In dealing however with the thirteenth century and bhe later middle ages we might be justified in saying that each af the high courts of the realm must have a set of rolls that is its own and a seal that is its own. A continuous memory of all that it has done seems the essence of a court's identity and bhis memory takes the shape of a continuous series of written records. At what we may call an early time the exchequer ceased to The exohe- be a phase of the general governing body of the realm, and *"*'^' became a department, with a seal of its own and many records Df its own, a financial department I In Bishop Richard's Dialogue we still see all the great ones of the kingdom seated 1 Glanvill, vii. 1 : ' aliquando tamen super hoc ultimo easu in curia iomini Regis de oonailio curiae ita ex aequitate consideratum est.' Note Book, pi. 273, 785, 786, 900, 940, 1376. Bracton, f. 1 b : unprecedented cases are to be decided 'per consilium curiae.' In the Year Books one may sometimes see a 3ontrast between rigor and aequitas ; T. B. 30-1 Edw. I. 120. 2 The exchequer plea rolls do not begin until late in Henry III.'s reign; nuch business of a judicial character is noticed on the memoranda rolls of the remembrancers which begin with the beginning of the reign. There are also lumerous sets of rolls which set forth the more purely financial business in the form of accounts. 170 The Age of Bracton. [bk. i. round the chess board. The chief justiciar is there and the chancellor of the realm. Gradually they withdraw themselves from the ordinary work of the board, though they may attend it on special occasions. The treasurer becomes its president ; its seal is kept by the chancellor of the exchequer, an officer who first appears in Henry III.'s reign', and the writs that it issues are tested by the senior baron^. From the beginning of the reign onwards men are definitely appointed to be barons of the exchequer ^ They are chosen from among the king's clerks, but they keep the old title and they are sufficiently the ' peers ' of the barons of the realm to enable them to inflict amerce- ments on noble offenders. As yet there is no ' chief baron *.' The treasurer is the head of the court whatever it may be doing. The position of the chancellor of the exchequer is at present a subordinate one ; he keeps the seal of the court and his accounts may serve to check the treasurer's, but apparently the acts of the court are always attributed to the treasurer and barons^. Work of The Exchequer is called a curia^. In our view it may be a quer.'^" ^ compound institution, in part a judicial tribunal, in part a financial bureau. The process which in course of time will divide a great ' government office' known as the treasury from the court of law held before a chief baron and other barons, has not as yet gone far. The duty of issuing the king's treasure is performed by the treasurer with the assistance of the deputy chamberlains — already the chamberlainships have become here- ditary sinecures' — and in this matter he is not controlled by the barons. But then in this matter he has very little discre- tion, for he dares issue no penny save in obedience to an order which comes to him under the great or the privy seal ; even for every payment of an annual salary he requires such a warrant from above*. The main work of the court or board over which 1 Madox, Exchequer, ii. 51. 2 pieta, p. 82. 5 Madox, Exchequer, ii. 54. « Foss, Judges, iii. 196. " Writs sent to the exchequer are addressed to the treasurer and barons, or, if they merely order the delivery of treasure or the like, to the treasurer and chamberlains. ^ Fleta, p. 81 : ' Habet etiam Eex curiam suam et iustitiarios suos in Scaccario apud Westmonasterium residentes.' ' Madox, Exchequer, ii. 295. 8 This is the theme of Lord Somers's magnificent judgment in The Banker's case, State Trials, vol. xiv. p. 1. In course of time a practice of sending to the CH. VI.] The Age of Bracton. 171 he presides is that of collecting the king's revenue. It receives and audits the accounts of the sheriffs and other collectors ; it calls the king's debtors before it, hears what they have to say, investigates the truth of their allegations, grants them an acquittance or issues process against them, ' according to the customs and usages of the exchequer.' We may perhaps call it an administrative tribunal. If questions of fact or questions of law arise, it ought to judge impartially between the king and his subjects ; but still its duty is to get in what is due to the king, and to do this spontaneously without waiting for any external impulse. It is a revenue board which hears and decides. Then also it is often empowered to give relief against the king. Not that a subject can bring an action against the king either here or elsewhere, but when a man thinks that he has a claim against the king, either in respect of some debt that the king owes him, or in respect of some land that the king has seized, he will (this is the common practice of Edward I.'s day) present a petition to the king and council, and a favourable response to this petition will generally delegate the matter to the treasurer and barons and bid them do what is right'. If a question of general law be involved, they will often be told to associate with themselves the justices of the two benches, for they themselves are supposed to know rather ' the course of the excheqxier' than the common law of the land. However during our period we may see an irrepressible tendency at work which will give them a power to adjudicate in personal actions between subject and subject. In Edward's reign they are often forbidden to do this, but they do it ; and in so doing they may be rather striving to retain old powers, powers that had been exercised by the exchequer when it was a phase of the as yet undifferentiated ' curia,' than to usurp new powers. We are at a loss to account on the one hand for the offence that they thus gave to the community of the realm, and on the other for the persistent recourse to their tribunal of creditors who might have gone elsewhere, unless it be that a creditor might thus obtain the advantage of some of those expeditious and exohequer ' current liberates,' or, as we might say, standing orders for the pay- ment of periodical charges, was adopted. 1 Bolls of Parliament, vol. 1, passim. It would seem that most of those matters which in after days would have been the subjects of ' petitions of right ' were in earlier days thus delegated to the exchequer. eery. 172 The Age of Bracton. [bk. i. stringent processes which had been devised for the collection of crown debts. In the end, as is well known, the exchequer triumphed under the cover of fictions, but this victory belongs to a later time than that of which we are speaking'. The chau- Men are beginning to speak of the chancery as a curia^, but even in Edward I.'s reign it is not in our view a court of justice ; it does not hear and determine causes. It was a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the chancellor, who, when there was no longer a chief justiciar of the realm, became the highest in rank of the king's servants. He was ' the king's secretary of state for all departments'.' Under him there were numerous clerks. The highest in rank among them we might fairly call ' under secretaries of state' ; they were ecclesiastics holding deaneries or canonries ; they were sworn of the king's council ; some of them were doctores utrivsque iuris ; they were graduates, they were ' masters' ; some of them as notaries of the apostolic see were men whose 'authenticity' would be admitted all the world over*. Very little was done by the king that was not done by a document bearing the great seal ; it was ' the key of ' The curious point is that iu this matter the barons seem to have acted in defiance not merely of laws and ordinances but of the king's own interests. Whether the well-known phrase in the Charter ' Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo' was originally intended to deprive the exchequer of jurisdiction over common pleas, is very doubtful ; but that intention was authoritatively attributed to it in Edward I.'s day. We find Edward laying down the prohibitive rule not merely in the Articuli of 1300 (Statutes, i. 138), some of which were won from him by pressure, but in a much earlier ordinance, the so-called Statute of Bhuddlan (i. 70), where he gives as his reason the delay of the exchequer's proper business. As to the motives which sent plaintiffs to the exchequer, we find that when the king by way of exceptional favour sanctions their going thither, he sometimes expressly says that they are to have the benefit of the processes appropriate to crown debts. See Madox, Exchequer, i. 209-214, ii. 73-6. " Fleta, p. 66 : ' Habet etiam [Eex] curiam suam in cancellaria sua.' 3 Stubbs, Const. Hist. i. p. 381. * The term magistri when applied to the masters in chancery seems at first merely to mark them as men with university degrees. But they were also praeceptores, for in certain cases they had power to order that a writ should issue; Fleta, p. 77. Apparently the class of writs known as magistralia consists of those which must be settled by one of the magistri ; Bracton, f. 413 b. Edward I. had two apostolic notaries in his chancery, John Arthur of Caen and John Busshe. The series of masters of the rolls goes back to the early years of Edward's reign. The master of the rolls is the chancellor's principal subordinate. CH. VI. J The, Age of Bracton. 173 the kingdom'.' The exchequer and the two benches had indeed seals and could issue writs running in the king's name, writs, for example, summoning juries, coercing contumacious litigants or carrying judgments into effect ; but the province of such writs was not very wide and it was a very general rule that no action could be begun in the king's courts and that no action touching freehold could be begun anywhere without an 'original' or (as we might say) ' originating' writ, which proceeded from the chancery and served as the justices' warrant for entertaining that action^. During the course of Edward's reign writs under the privy seal became common, but the king was constrained to promise that no writ which concerned the common law should issue under that seal', and very many of the writs thus authen- ticated were addressed to the chancellor and did but bid him set the great seal to some instrument which would be the final expression of the king's will*. Confidential clerks or 'secretaries,' (for this word was coming into use) were beginning to iatervene between the king and his chancellor, sending to him written, or carrying to him oral messages^. The chancellor was now a man of exalted rank, and though theoretically the chancery ' followed the king,' still as a matter of fact it often happened that the king was at one place while the chancellor was at another^ In its final form almost every message, order or mandate that came, or was supposed to come, from the king, whether it concerned the greatest matter or the smallest, whether addressed to an emperor or to an escheator, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolls and charter rolls, Roman rolls, Gascon rolls and so forth, are covered with copies of these documents. ' Mat. Par. Chron. Maj. v. 130. ^ 2 Writs isGued by the court in the course of litigation are hrevia iudicialia ; they are sometimes said to ' issue out of the rolls of the court ; ' this means that the order for the issue of the writ is on the court's roll. 3 Articuli super cartas, 1300, c. 6 (Statutes, i. 139). » The large collection of privy seal writs in the Becord Office begins in Edward I.'s reign. s Maitland, Parliament Roll of 33 Edward I., p. xxxvii. * The stages by which the chancery ceased as a matter of fact to be a peripatetic office, following the king in his progresses, have never yet been accurately ascertained; but it seems probable that Chancellor Burnel made some noteworthy change in 1280 : Annales Monastici, ii. 393, iv. 477. 174 The Age of Bracton. [bk. i. and yet reveal but a part of the chancery's work, for no roll sets forth all those ' original' writs that were issued ' as of course'.' The origi- The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III. A 'register of original writs' which comes from the end of that period will be much longer than one that comes from the beginning^ Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry's early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover by means of his writs'. Some distinction seems to have been taken between necessaries and luxuries. A royal writ was a necessary for one who was claiming freehold, it was a luxury for the creditor exacting a debt, for the local courts were open to him and he could proceed there without writ. Elaborate glosses overlaid the king's promise that he would sell justice to none, for a line between the price of justice and those mere court fees, which are demanded even in our own day, is not very easily drawn*. That the poor should have their writs for nothing, was an accepted maxima The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarii) ; it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers ; but some clerk of a higher grade seems to have been responsible for every writ". No finality was as yet ascribed to the register ; it was not regarded as an exhaustive scheme of justice to which no addition could be made save by definite legislation, though a common form when once settled was not to be lightly tampered with. New writs could be made, at all events if they were ■personal,' not 'real' — any innovation 'touching freehold' was a 1 If an intending litigant has to pay for his original writ, then an entry will be made on the fine roll, but the nature of the writ will be but briefly described, e.g. as ' a writ of trespass,' ' an attaint ' or the like. See Fleta, p. 77. 2 Harvard Law Beview, iii. 175. ' Excerpta e Eotulis Finium, i. 29, 49, 62, 68 ; Harvard Law Beview, iii. 12. * Fleta, p. 77. = Fleta, p. 77 ; Excerpta e Eotulis Finium, ii. 101, " Fleta, p. 77-8, CH. VI.] The Age of Bracton. 175 more serious matter — and they were pretty freely made'. To take the best example, towards the close of Henry's reign the action of trespass, so full of future history, becomes common somewhat suddenly. The chancery had not yet fallen so far apart from the courts of law that the justices could not get new writs made if they wanted them. In manuscript registers we find a group of new writs ascribed to William Raleigh who was for some years the foremost judge in the king's court^. For some years before the barons' war Henry attempted to govern without a chancellor or with a chancellor who was such only in name'; his chancery was no serious obstacle to his will and pleasure, though now and again even a vice-chancellor might resign rather than set the seal to a document that he regarded as illegal*. Complaints against new and unaccustomed writs grew loud^ The discontented prelates and barons demanded a real chancellor and one sworn to issue no writs, save ' writs of course,' without warrant from the baronial council^. Under Edward I. two different causes tended to give stability and finality to the cycle of original writs. On the one hand it became apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made; even when the king was concerned, the list of actions was to be a closed list'. On the other hand chancery and chancellor had grown in dignity. There were great chancellors who were usually the king's first ministers. The chancery was by this time independent of the ' benches.' The days when the chancellor would often sit among the justices were passing away, the days for stiff official correspondence between the courts and the chancery had come. It is but very rarely that we hear of the chancery or the The chan- chancellor performing any work that can fairly be called judicial. tStanai.* The issuing of the ' original' writs was not judicial work, though 1 Bracton, f. 413b-414b. ' Harvard Law Eeview, iii. 173-4^6. 3 Mat. Par. Chron. Maj. iii. 364, 491, 495, 530. " Ibid. iii. 629 ; v. 594. 5 This begins as early as 1244; ibid. iv. 863, 367 ; vi. 363. ' " Ann. Burton, 448. ' Placita de Quo Warranto, 681, 686 ; writs brought by the king are q^liSd' ' by the judges. Eot. Pari. i. 52 : Edward has to complain to his council thafa particular ease has occurred which is not exactly met by any of the three writs of escheat current in the chancery. 176 The Age of Bracton. [bk. i. we may learn from petitions addressed to the chancellor and from other sources that it was not always work to be done mechanically ; a friend of the chancellor might hope for a few words in his writ that a stranger would hardly have obtained'. Of any ' equitable jurisdiction' exercised in the chancery we hear nothing; the king's justices still believe that they can do what equity requires. But even of what afterwards became the 'common law jurisdiction' of the chancery, the jurisdiction of its 'ordinary' or 'Latin side' we hear very little. In later days that jurisdiction was concerned chiefly, though not solely, with cases in which a subject required some relief against the king'. In the latter half of the thirteenth century a subject who has aught against the king has, at least as a general rule, but one course open to him. He presents a petition to the king or the king and his council. This may come before the king himself, or before a full meeting of the council, or before a select body of councillors assigned to deal with such petitions as can be easily disposed of. If he gets a favourable answer, this — since as yet he has shown but some plausible case for relief — will in general send him before some tribunal whi^ will be instructed by a writ from the chancery to hear his claim and do what is just. Generally that tribunal is the exchequer, which may be afforced for the occasion by the presence of the chancellor and the justices ; sometimes it is one of the benches. Occasionally but rarely the chancellor is appointed to hear and decide the cause ^. ' Eoyal Letters, i. 68, 276, 282 ; ii. 48. ' Hale, Jurisdiction of the House of Lords, 47 ; Blaokstone, Commentaries, iii. 48. ^ See Eolls of Parliament, vol. i. passim, and Maitland, Parliament Eoll of 33 Edward I. An instance of a case committed to the chancellor occurs in Eot. Pari. i. p. 60 : ' Veniant partes coram cancellario et ostendat ei Adam quare ipsos eiecit ; et fiat eis iustitia.' Such a response as this is rare. Already a practice obtained of acknowledging debts in the chancery, and when this had been done, a writ of execution would issue from the chancery in the creditor's favour. Fleta, p. 76, mentions this as a case in which a 'judicial' writ issues from the chancery. But here originally there was little to be called jurisdiction, for the creditor who had a recognizance had in theory what was equivalent to a judgment in his favour, and execution would issue as a matter of course. It is probable that in dealing with the king's wards the chancery exercised something like jurisdiction, e.g. by deciding that full age had or had not been attained, by allotting dower to widows and making partition among co-heirs • but on the whole this (like much of the work done in the Chancery Division to this day) is the work of an administrative office rather than of a tribunal. CH. VI. J The Age of Bracton. 177 The king's court — to say no more of the exchequer and the The two chancery — has been slowly breaking up into three tribunals ; there is a Common Bench, a King's Bench, and a yet higher court, which in the days of Edward I. we may indifferently call the King in Council or the King in Parliament. A cleft began to appear when Henry II. in 1178 appointed certain justices to sit permanently in his court and hear the complaints of all men, but reserved the more arduous cases for himself and the wise men of the realm'- It disappeared for a while under the absentee Richard, it reappeared under John who travelled through the country with justices in his train while other justices remained on ' the bench ' at Westminster^. Again it disappeared for a while during the minority of Henry III. ; we can see no permanent, central tribunal save that held by ' the justices of the bench ' who sit term after term at Westminster, though the council of regency supervises their work. It begins to reappear and this time for good and all when Henry is of full age and does justice in person. From the year 1234 onwards — but the exact date can hardly be fixed — there are two different courljs, each of which has its own set of rolls'. The one is held before the justices of ' the bench ' who sit at Westminster, its records are the ' de banco rolls' ; the other follows the king, its rolls are the 'coram rege rolls.' A litigant summoned before the one is told to come ' before our justices at Westminster' ; if summoned before the other, he must appear ' before us where- soever we shall be in England.' And then the Great Charter has decreed that ' common pleas' are not to follow the king, but are to be heard in some certain place^ Thus ' the bench ' has become the appropriate tribunal for ordinary civil suits between' subject and subject. The complementary rule, which assigns the ' pleas of the crown' to the court held coram rege, seems to grow up gradually and not to be the outcome of legislation'. The court held coram rege is superior to, for it can correct the errors of, 'the bench '°. Then early in Edward I.'s reign 'the 1 Above, p. 133. 2 Select Pleas of the Crown (Selden Soc), pp. xiii-xix. ° Braoton's Note Book, i. pp. 56-58. * Charter, 1215, c. 17. ' It is of comparatively late origin. There are many criminal oases on the de banco roUs of Edward I. 6 Note Book, pi. 1166, 1189, 1190. P. M, 12 178 The Age of Bracton. [bk. i. bench,' though in formal documents it will keep its old name and until 1875 be simply ' the bench/ begins to be called the Common Bench, and the name of King's Bench is given to the court that is held coram rege, or rather to one offshoot of it'. We have to state the matter thus, for the court that during '^ar'uament Henry's reign is held coram rege breaks into segments. For a°* ordinary purposes it is a court held by a few professional justices; but at any moment it may become a fuller and grander tribunal ; the king may be there with his councillors ; all the prelates and barons of the realm may be assembled. But whatever form it takes it seems to be considered as essentially but one tribunal, 'the court of our lord the king held before the king himself.' In modem terms we might say that the court held before the king in parliament and the court held before the king in council are the court of king's bench raised to a higher power ; or again we might say that the court of king's bench is a standing committee of council and parlia- ment. In Edward I.'s reign there comes a further change. The term 'king's bench' is brought into use to signify the court held theoretically coram rege by the professional justices, and just about the same time a third set of plea rolls begins to appear. Besides the ' de banco rolls' and the ' coram rege rolls' there are those records which we know as the ' parliament rolls'; the earliest extant roll comes from the year 1290. For some time to come however the cleft is not very deep; the same plea that is found on a parliament roll may be found also on a coram rege rolP. For judicial purposes the parliamentary sessions of the council can be conceived as strengthened, as ' afforced,' sessions of the king's bench. All the justices and all > In discnssiona of this obecure matter it has too often been forgotten that BO long as there was a Oourt of Common Fleas the most solemn title of its justices, was 'Justices of the Bench,' while in 1875 the justices of the Queen's Bench were 'Justices assigned to hold pleas before the Queen herself.' In 10 Edw. I. we have the King's Bench distinguished from the ' Great Bench ' ; Plac. Abbrev. p. 274. About this time ' the justices of either bench' becomes a common phrase. Foss (ii. 160-186) viewing the matter from a biographer's stand-point, may be right in fixing a late date for the final establishment of the two courts, for until the end of Henry's reign the judges are easily moved backwards and forwards between the two courts or divisions ; but long before this there are two parallel sets of rolls ; and Bracton may serve as an instance of a judge who, so far as we know, never sat at ' the bench,' but for several years held pleas ' coram rege.' 2 Hale, Jurisdiction of the House of Lords, p. 58. CH. VI.] The Age of Bracton. 179 the chiefs of the great offices, all the masters in chancery and so forth, are members of the council, and, if they are not wanted elsewhere, will be summoned to those great sessions of the council that are known as 'parliaments.' There remain in suspense many questions as to the composition and jurisdiction of this highest of all tribunals. Is that tribunal to be the assemblage of prelates and barons, or is it to be the king's council ; is it to be but a court of second instance, or is it to have any original jurisdiction ? The fourteenth century has to answer these questions ; the thirteenth leaves them open'. As to the courts held in the king's name by men who are itinerant . . 1.1 justices. actmg under temporary commissions, men who m a large sense of the term are 'itinerant justices,' we must say but little, though were we to descend to details much might be said, for the king's power to issue commissions has hardly a limit in law, but few limits in custom, and new needs are being ever and anon met by new devices. But we may distinguish the main types of these commissions. What seems treated as the humblest is the commission to deliver a gaol. This in the later part of Henry III.'s reign is done very frequently; generally it is done by some three or four knights of the shire, and thus long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice^ In order to dispose of the possessory assizes of novel disseisin and mort d'ancestor, a vast number of commissions were issued in every year. Early in Henry's reign this work was often entrusted to four knights of the shire ; at a later time one of the permanent justices would usually be named and allowed to associate some knights with himself. Apparently a justice of assize had often to visit many towns or even villages in each county ; he did not do all his ^ The problem for the fourteenth century is neatly raised by the words of Fleta, p. 66 : ' Habet enim Eex curiam suam in concilia sua in parliamentis suis, praesentibus praelatis, comitibus, baronibus, proceribus et aUis viris peritis [corr. iurisperitis].' Besides this the king has a court (King's Bench) of justices 'locum suum tenentes in Anglia'; also he has a court before the justices of the (Common) Bench at Westminster. The parallel passage in Bracton (f. 105 b, 108) recognizes but two central courts, the Bench, and a higher court which is more specifically the king's own court, where his 'chief justices' sit. See Maitland, Parliament EoU of 33 Edw. I., Introduction, p. Ixxix. " Thus Cambridge gaol seems to hare been delivered about twenty-four times in seven years beginning with 2 Edw. I., the deliverers being usually Cam- bridgeshire knights. Eeports of Dep. Keeper, xliii-xlix. 12-2 180 The Age of Br acton. [bk. i. work at the county town'. It must have been heavy work, for these actions were extremely popular. In the second year of Edward's reign some two thousand commissions of assize were issued". Just at that time the practice seems to have been to divide England into four circuits and to send two justices of assize round each circuit ; but a full history of the circuits would be intricate and wearisome. Above all the other commissions ranked the commission for an iter ad omnia placita, or more briefly for an iter or eyre. An eyre had come to be a long and laborious business. In the first place, if we suppose an eyre in Cambridgeshire announced, this has the eifect of stopping all Cambridgeshire business in the bench. Litigants who have been told to appear before the justices at Westminster will now have to appear before the justices in eyre at Cambridge. There is no business before the bench at Westminster if an eyre has been proclaimed in all the counties'. Then again the justices are provided with a long list of interrogatories (capitula itineris) which they are to address to local juries. Every hundred, every vill in the county must be represented before them. These interrogatories — their number increases as time goes on — ransack the memories of the jurors and the local records for all that has happened in the shire since the last eyre took place some seven years ago; every crime, every invasion of royal rights, every neglect of police duties must be presented*. The justices must sit in the county town from week to week and even from month to month before they will have got through the tedious task and inflicted the due tale of fines and amerce- ments °. Three or four of the permanent judges will be placed in the commission ; with them will be associated some of the magnates of the district; bishops and even abbots, to the scandal of strict churchmen, have to serve as justices in eyre". 1 Bracton took Devonshire assizes at Exeter, Morchard, Molton, Torrington, Ghulmleigh, Barnstaple, Umberleigh ; Note Book, i. p. 17. " Calendar of Patent Bolls in 43rd Eep. of Dep. Keeper. ' During Henry's reign there seem to have been several years during which no court was sitting at Westminster, eyres having been proclaimed in all or most of the counties: Xote Book, i. pp. 141-2. * As to these articles see Select Pleas of the Crown (Selden Soc), p. xxii. ' The proceedings of an eyre can be best studied in Page, Three Assize Bolls for Northumberland (Surtees Society). " Bishops were largely employed in the first eyre of the reign. In 1236 the appointment of an abbot is a scandal ; Bob. Grosseteste, Epistolae, pp. 105, 108. CH. VI.] The Age of Bracton. 181 Probably it was thought expedient that some of the great freeholders of the county should be commissioned, in order that no man might say that his judges were not his peers. An eyre was a sore burden ; the men of Cornwall fled before the face of the justices^; we hear assertions, of a binding custom that an eyre shall not take place more than once in seven years ^. Expedients are being adopted which in course of time will enable the justices of assize to preside in the country over the trial of actions which are pending before the benches; thus without the terrors of an eyre, the trial of civil actions can take place in the counties and jurors need no longer be ever journeying to Westminster from their remote homes. But these expedients belong for the more part to Edward's reign; under his father a jury wearily travelling from Yorkshire or Devonshire towards London must have been no very uncommon sight'. The king's courts have been fast becoming the only judicial Triumph of tribunals of any great importance. Throughout the reign the t^e. '"^ bulk of their plea rolls increased at a rapid rate. Every term the bench at Westminster entertained a vast multitude of causes. The litigants who came before it were often men of lowly rank who were quarrelling about exceedingly small parcels of land. Though we hear some bad stories of corrupt and partial judges^, it is plain that this powerful, central tribunal must have been well trusted by the nation at large. Rich and poor alike would go to it if they could. The local courts were being starved, and this result we can not ascribe altogether to the ambition or greed of the lawyers at West- minster. Of his own free will the small freeholder passed ' Ann. Dunst. p. 135 (1233) : ' c[Uorum metu omnes ad silvas fugerunt.' 2 Ann. Wigorn. p. 446 (1261). ^ A 'nisi prius' clause was occasionally used as early as 1225; see Note Book, pi. 721 and many other oases. The burden of jury service was not quite so intolerable as it might seem, did we not remember (1) that by far the most popular of all actions were the assizes of novel disseisin and mort d'aucestor ; (2) that these assizes were not as a general rule actions pending in the court at Westminster, but were from the moment of their inception consigned to justices of assize; (3) that 'trespass' did not become common until late in the reign; (4) that jurors were seldom required for actions of debt or detinue or for actions on prohibitions; (5) that a 'grand assize' was, or ought to have been, consti- tuted of knights, who could go to Westminster on horseback. * Mat. Par. v. 213, 223, 240 : charges against Henry of Bath; v. 628, against Henry de la Mare. 182 The Age of Bracton. [bk. 1. by his lord's court and the county court on his way to the great hall. He could there obtain a stronger and better commodity than any that was to be had elsewhere, a justice which, as men reckoned in those days, was swift and which certainly was masterful; he could there force his adversary to submit to a verdict instead of finding that his claim was met by some antique oath with oath-helpers. The voice of the nation or what made itself heard as such, no longer, as in 1215, demanded protection for the seignorial courts^; it asked that the royal court should be endowed with yet new and anti-feudal powers ; it was to be in all temporal causes supreme^. Men were fast coming to the opinion that it ought to be, in Bentham's phrase, ' omni- competent ' ; that' for every wrong there should be a remedy in the court of their lord the king. This is not an idea that is imposed from above upon an unwilling people. Bracton himself, the royal judge, the professional lawyer, does not thrust it forward as an obvious first principle. He explains or even apologizes for certain manifestations of kingly justice which may seem to be at variance with feudal rules'. But still this principle is at work — it is the king's business to provide a competent remedy for every wrong^ Thejudges. The number of the justices whom Henry kept in his pay was never large. If there were some three or four in his train to hold the pleas coram rege, some four or five at ' the bench,' and three or four barons in the exchequer, this was enough. During the last years of the reign ' the bench' often seems to have but three, or even but two, occupants^. These judges are very truly the king's servants; he can move them about as seems best to him or dismiss them at a moment's notice. By slow degrees the work of hearing and deciding causes is being 1 Charter, 1215, i;. 34. " Petition of 1258, o. 29, the great lords are not to make their courts tribunals of second instance. Provisions of Westminster, c. 9, 10, damages are to be given in the assize of mort d'anoestor ; u. 6, procedure in dower unde nihil habet (an action which controverts feudal principles) is to be speedier ; 0. 18, the royal control over aU actions touching freehold is to be secured. Stat. Marlb. c. 29, the scope of the writs of entry is to be extended at the expense of the writ of right. ' Bracton, f. 106, a defence of dower unde nihil liabet; f. 281, a defence of the writ of oosiuage ; comp. Note Book, pi. 1215. * Bracton, f. 414 b: 'pertinet enim ad regem ad quamlibet iniuriam com- pescendam remedium competens adhibere.' » Note Book, i. p. 144-5. CH. VI. J The Age of Bracton. 183 disengaged from governmental business. The ofiSce of a chief justiciar who is both the king's prime minister and the president of the highest law court became extinct. Even Hubert de Burgh had hardly filled the place of Lucy and Glanvill, of Hubert Walter and Geoffi-ey Fitz Peter, for he very seldom sat on the bench. For a short while after his fall in 1232 the justiciarship was committed to a lawyer, to Stephen Segrave ; but from 1234, when Segrave was disgraced and dismissed, until 1258, when the time of revolution was at hand, the justiciarship was in abeyance. The title was then revived and borne for a season by Hugh Bigot, Hugh le Despenser and Philip Basset, whose names represent the alternating fortunes of contending factions. At last in 1268 Eobert de Brus, the future 'com- petitor' for the crown of Scotland, was appointed ' chief justiciar to hold pleas before the king'; and the words thus added to the old title signified that only for judicial purposes was he to be chief justiciar^ With him began the new line of the chief justices of England who are but the presidents of a law court, and about the same time the presiding judge at ' the bench ' or 'the common bench' began to be formally styled its chief justice ^ It was no longer expected of the judge that he should be a statesman, or of the statesman that he should be expert in the law. We hear indeed complaints that the king puts unworthy and ignorant men upon the bench, men who will do just what he wants, but some of the judges of Henry's reign were known to their contemporaries merely as great lawyers and seem to have earned the respect of all parties in the state'. Many of them were ecclesiastics ; among such we may Clerical reckon- Martin Pateshull, William Raleigh, Robert Lexington, William of York, Henry of Bratton; even Stephen Segrave seems to have had enough of the clerk about him to serve as a * Fobs, Judges, ii. 270. It is convenient to give the title of 'chief justice' to the series of presidents of the king's bench which begins at or about this point, reserving 'chief justiciar' for the line of first ministers or viceroys which is becoming extinct. But this is a modem artifice. The change of style was really a very small one ; it consisted in adding to the old title ' Capitalis Justiciarius Angliae' the linuting words 'ad placita coram Eege tenenda.' So long as Latin is used a justice is a ' iusticiarius,' a chief justice is a ' capitalis insticiarius.' In the twelfth century imtitia had been the commoner title. 2 Foss, Judges, iii. 142, makes Gilbert Preston the first chief justice of the common pleas. 3 Note Book, i. p. 24-5. 184 The Age of Bracton. [bk. shield against temporal justice*. Bishops no longer steadily sat in the law courts, though they might now and again appear as justices in eyre ; but canonries, deaneries and even bishoprics were still to be earned by good service on the bench ; William Raleigh thus won the see of Norwich and William of York the see of Salisbury. However all this was becoming somewhat scandalous ; the clergy were being forbidden by the law of the church to study temporal law or decide temporal causes'. Before the end of the reign the lay element among the king's judges is beginning to outweigh the ecclesiastical; Thomas Multon and Roger Thurkelby are laymen who make names for themselves as learned justices'; but even of Edward I.'s justices not a few were clerks. This is no small change; it means that the study of English law is becoming a thing apart from all other studies. Just at the same time — and really this is part of the same phenomenon — a class of advocates who practised in the king's courts was forming itself. Some of Edward's judges had practised at the bar of his courts; his father's judges seem for the more part to have worked their way upwards as clerks in the courts, in the exchequer, in the chancery''. The change brought good with it and evil. Our judges became a little less dependent' on the king than they had been; our law was protected against romanism and our 1 Mat. Par. Chron. Maj. iii. 293. * Ann. Burton, p. 308-9. Articles of inquiry into the life of the clergy ; 'An aliqui sint.,.ii]stitiarii 3aeculares...An aliqni beneficiati audiant Tel doceant leges saeculares.' Grosseteste, Epist. p. 266 : Bobert Lexington has piled irregularity upon irregularity by hearing criminal causes on Sunday. From another letter (p. 106) we learn that a clerical justice would salve his conscience by leaving the bench when a sentence of death was to be passed. The clerks who write the plea rolls have scruples about writing the word ' suspendatur ' : — ' et ideo habeat indicium suum,' or simply ' et ideo etc' will be quite enough. ' Mat. Par. Chron. Maj. iv. 49 : ' Thomas de Muletuna, miles in armis cum inventus ei arridebat, et cum provectioris esset aetatis abundans possessionibus legisque peritua saeoularis.' Ibid. v. 317: ' Eogerus de Thurkebi miles et literatuB.' * Laurence de Brok, who often represented Henry III. in litigation, seems to be one of the first men who climb to the judicial bench from the bar ; Foss, Judges, ii. 267. It is by no means impossible that Martin P^teshuU was clerk to Simon PateshuU (see above, p. 148), that William Ealeigh was Martin's clerk (Maitland, Gloucestershire Pleas of the Crown, p. xiii), that Bracton was Baleigh's clerk and thus inherited the rolls that he used. William of York had been a clerk in the chancery ; ' I raised you from the depths ; you were the scribbler of my writs, a justice and a hireling,' says King Henry ; Mat. Par. Chron. Maj. v. 374. CH. yi.] The Age of Bracton. 185 constitution against the monarchical doctrines that romanism might have brought with it. On the other hand law was divorced from literature; the age for law reports, for Year Books, had come ; the age for a great exposition of English law had gone by. Happily in the fulness of the time the work had been done. Bracton's book is the crown and flower of English medieval Bracton. jurisprudence. What we know of its author has been written elsewhere, and may here be summed up very briefly'. His name was Henry of Bratton ; he was a Devonshire man and in all likelihood he began his career as William Raleigh's clerk. In 1245 he was already a justice in eyre and from 1248 until his death in 1268 he steadily took assizes in the south-western counties. From 1248 to 1257 or thereabouts he was among the justices who held pleas coram ipso rege, in other words, he was a justice of the nascent court of King's Bench, and the very highest places in church and state must have seemed to be open to him. Shortly after this however he appears to have retired or been dismissed from his position in the central court, though to his dying day he acted as a justice of assize. In 1259 he became rector of the Devonshire parish of Oombe-in- Teignhead, in 1261 rector of Bideford, in 1264 archdeacon of Barnstaple, and in the same year chancellor of Exeter cathedral. Thus he seems to have left the king's court just at the time when the revolutionary movement that preceded the barons' war came to its first crisis; and just about the same time he had to restore to the treasury the large store of plea rolls, those of Martin PateshuU and William Raleigh, that had been in his possession. Whether he was disgraced and, if so, whether he had offended the king or the barons, we can not as yet decide. In the last year of his life, in 1267, he appeared once more in a prominent place ; he was a member of a commission of prelates, magnates and justices appointed to hear the complaints of ' the disinherited,' of those who had sided with Simon de Montfort. His book is an unfinished book ; we do not know that it was His book. published in his lifetime. The main part of it seems to have been written between 1250 and 1258, the time when he had to surrender the plea rolls; apparently he was still glossing and y annotating it at a later time ; but at present we can not always 1 See Bracton's Note Book ; a comparison of Bracton's text with Azo's is to be made in a book that will be published by the Selden Society. 186 The Age of Bracton. [bk. I. distinguish his own ' addiciones' from those of later commen- tators. A 'note book' has come down to us which seems to have been his. It contains some two thousand cases copied from the rolls of PateshuU and Raleigh, over against some of which marginal notes have been written ; to all appearance they came from Bracton's hand or from Bracton's head^ Character Eomanesque in form, English in substance — this perhaps is ton's^work. ^^^ best brief phrase that we can find for the outcome of his labours ; but yet it is not a very good phrase^. He had at his command and had diligently studied the works of the famous Italian Italian lawyer, Azo of Bologna ; he also made some use at first hand of various parts of the Corpus luris Civilis, of the Decre- tum and of the Decretals, and he levied contributions from the canonist Tancred. His general idea of a law book, of the method by which law should be expounded and legal principles harmonized, has been derived from these sources. He has borrowed from them large maxims, such as might well be conceived as parts of universal and 'natural' law; he has borrowed some more specific rules, for the more part such as deal with matters of rare occurrence in England ; he is guilty of a few classical pedantries and sometimes uses foreign terms instead of those that were current in the courts. It is highly probable that if many of his fellows on the bench had been as learned as he was, the romano-canonical jurisprudence would have become a ' subsidiary law ' in England, a law to be adduced when enacted law and customary law had no clear answer for a question ; but we can not treat his book as a proof that such was the case in his own day'. We do not know that any of his ' Bracton's Note Book, vol. i. ^ See Giiterbock, Henrious de Braeton ; Scrutton, Boman Law in England. ' The nearest approach to an admission that Boman law may be employed to eke out English law is to be found on a roll of 1237-8', Note Book, pi. 1227. The question is as to whether a palatinate can be partitioned among co-heirs j the magnates, prelates and justices declare that they never heard of a similar case, that they do not know whether there is anything about it in Magna Carta, that they will not follow foreign precedents, and that they have seen no such case in iure scripto (i.e. in Boman law) ; therefore they adjourn their decision. Any notion that this country was in any way subject to the empire would have been scouted in England. Just when Bracton was writing it had become extremely probable that the Emperor for the time being would be a subject and vassal of the king of England. Bicardus Bex Alemanniae (hi was Rex Romanorum semper augustus) was impleaded for a novel disseisin ; Placif Abbrev. p. 145. CH. VI.] The Age of Bracton. 187 fellows had more than that superficial acquaintance with the law of the church which was common among ecclesiastics : they might be archdeacons, they might hope to be bishops, but the judicial functions of bishops and archdeacons were by this time commonly delegated to their professionally learned 'officials.' Bracton's neology leaves no mark on the technical language of the courts ; the ' tenant for term of years' does not become a ' usufructuary' ; and if upon a plea roll we find a litigant made to talk about the corpus and animv^ necessary for possession, we shall find that the roll is Bracton's own'. Still Bracton's debt — and therefore our debt — to the civilians is inestimably great. But for them his book would have been impossible ; but for them, as the fourteenth century will show us, some beggarly collection of annotated writs would have been the best that we should have had from him ; we should have missed not only the splendid plan, the orderly arrangement, the keen dilemmas, but also the sacerdotal spirit of the work ^ On the other hand the main matter of his treatise is genuine English English law laboriously collected out of the plea rolls of the king's court. Bracton expressly cites some five hundred de- cisions, and whenever we compare his treatise with the records — and this can now be done at innumerable points — he seems to be fairly stating the practice of the king's court. No doubt our modem, oui- very modem, conception of rigorous ' case law' was far from his mind. He assumed a much larger liberty of picking and choosing his ' authorities' than would be conceded now-a-days to an English text writer. But still his endeavour is to state the practice, the best and most approved practice, of the king's court, and of any desire to romanize the law we must absolutely acquit him. To take the most obvious instance, in the great controversy about the legitimation of bastards he is as staunch an opponent of the leges and canones as the most bigoted baron could be, and indeed we find some difficulty in absolving him or his teachers from a charge of having falsified 1 Abbrev. Placit. p. 128 : ' nunquam se dimisit de terra ilia corpore neo animo.' This ia from one of the rolls which record Bracton's doings as a justice of assize. As to the usufruct, see Note Book, i. p. 91-93. 2 Bracton, f. 2b, 3: 'lus dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iustitiam namque colimus et sacra iura ministramus.' This old phrase (Dig. 1. 1, 1) is no cant in Bracton's mouth ; he feels that he is a priest of the law, a priest for ever after the order of Ulpian. 188 The Age of Bracton. [bk. books. history in order to secure a triumph for English law^ The few political inclinations that we can detect in his book are those of a royal justice; they are anti-feudal and anti-ecclesiastical leanings; he will maintain the state against the feudal lords, the kingly power against seignorial justice, and pious church- man, dutiful son of the pope, though he be, he will maintain the state against the church. As to the flagrant disputes between the king and the incorporate realm, the universitas regni, perhaps bis mind fluctuated ; perhaps, though no courtier, he sometimes said less than he thought; but at any rate his romanism has not made him an advocate of absolute monarchy ^ Later law The book was a successful book. Some forty or fifty manuscripts of it will seem a sufficient body of witnesses to attest its popularity, especially when we remember that the text of some of our Year Books has to be sought for in unique or almost unique copies. It became the basis of the legal literature of Edward I.'s day. Gilbert Thornton, chief justice of the king's bench, made an epitome of it^ This we have lost, unless it be represented by some of those manuscripts of Bracton's work which omit his references to the plea rolls. About the year 1290 two other books were written which are to a great degree reproductions of the classical treatise! The so-called 'Fleta' is little better than an ill-arranged epitome; what its author has not borrowed from Bracton he has for the more part borrowed from some of those little tracts on husbandry and the economic management of manorial afifairs which were 1 Note Book, i. 104-116. 2 For the anti-feudal inclination see the argument in favour of free alienation; Bracton, f. 45h-46b. For the anti-ecclesiastical tendency see the whole treatment of the writ of prohibition, f. 401-410, many sentences in which flatly contradict claims which were being made by the high churchmen of the day. Bracton, however, if we mistake not, is within the ecclesiastical sphere a thorough-going papalist. He ascribes to the pope not merely a jurisdiction, but an ordinaria iurisdictio, over all men. As to his political opinions see Note Book, i. p. 29-33. We can not decide what they were until some certain answer has been found for the question whether he wrote the fiery words on f. 34; but the moderate and unquestioned passage on f. 171b is enough to show that he was neither a courtly flatterer nor a champion of absolute monarchy; this however is evident enough from many other passages, including that (f. 107) in which he wilfully distorts (Note Book, i. p. 4) the ' sed et quod principi placuit.' ' Selden, Dissertatio ad Pletam, p. 456. '' Nichols, Introduction to his edition of Britton. CH. vl] The Age of Bracton. 189 becoming popular?. The so-called 'Britton' has better claim to be called an original work. It is in French and the whole law has been put into the king's mouth. It must have been a useful book, manuscripts of it are common ; on the other hand Fleta was to all appearance a failure. To these we might add some little tracts on procedure ascribed to Ealph Hengham, one of Edward I.'s chief justices. This however is not the place in which to speak at any length of these products of the Edwardian age, but to name them has been necessary since sometimes they will help us to discover the law of Henry III.'s reign when Bracton fails us. After all that has been done towards publish- ing the records of that reign, we shall still be very dependent on Bracton ; but enough has been published to prove that he is a guide who will not mislead us, if only we are careful to distinguish — and this is no very difificult feat — between his statement of English law and his cosmopolitan jurisprudence. Of other law books of Henry's reign little is known and other law little need be said ; the gap between them and Bracton's Summa Henry's is immense. Copies of the chancery ' register of original writs' ''®'^' were pretty widely distributed ; often a religious house had a copy ; sometimes brief notes of an intensely practical character would be written in them. There is extant but not yet printed a book of precedents for the use of pleaders in the king's court which apparently may be traced back to Henry's time, and from that time we begin to get precedents for the use of pleaders in the local courts, conveyancing precedents, and precedents for manorial accounts'; also brief disquisitions on rural economy which throw some light on legal arrangements^. Once more we must mention — though they are not literature — the voluminous rolls of the two benches, the exchequer and the chancery. About the middle of the century these begin to be supplemented by the rolls of local courts*, while much may be learnt from the' manorial surveys or ' extents,' numerous examples of which have been preserved in the monastic cartularies and elsewhere ^ ' Walter of Henley, ed. Lamond and Cunningham. 2 The Court Baron (Selden Society), Introduction. ^ See Miss Lamond's edition of Walter of Henley. » Select Pleas in Manorial Courts (Selden Society), Introduction. ^ Among the most accessible may be mentioned the Bolden Book (printed at the end of Domesday) ; the Black Book of Peterborough, the Domesday of St Paul's, the Worcester Eegister, the Battle Cartulary, all published by the 190 The Age of Bracton. [bk. i. The legal Before the end of the thirteenth century there ah-eady exists profession. ^ ■, . i i a legal profession, a class of men who make money by repre- senting litigants before the courts and by giving legal advice. The evolution of this class has been slow, for it has been withstood by certain ancient principles ^ The old procedure required of a litigant that he should appear before the court in his own person and conduct his own cause in his own words. For one thing, the notion of agency, the notion that the words or acts of Roger may be attributed to Ralph because Ralph has been pleased to declare that this shall be so, is not of any great antiquity. In the second place so long as procedure is very formal, so long as the whole fate of a law-suit depends upon the exact words that the parties utter when they are before the tribunal, it is hardly fair that one of them should be represented by an expert who has studied the art of pleading : — John may fairly object that he has been summoned to answer not the circumspect Roger but the blundering Ralph ; if Ralph can not state his own case in due form of law, he is not entitled to an Pleaders, answer. Still in yet ancient days a litigant is allowed to bring into court with him a party of friends and to take 'counsel' with them before he pleads. In the Leges Henrici it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once ; in all other cases a man may have counsel''. What is more, it is by this time permitted that one of those who ' are of counsel with him' should speak for him. The extreme captiousness of the old procedure is defeating its own end and so a man is allowed to put forward some one else to speak for him, not in order that he may be bound by that other person's words, but in order that he may have a chance of correcting formal blunders and supplying omissions. What the litigant himself has said in court, he has said once and for all and he is bound by it ; but what a friend has said in his favour he may disavow'. The professional Camden Society; the Bamsey, Gloucester and Malmesbury cartularies or registers published in the EoUs Series; the Burton Cartulary of the Salt Society and the Yorkshire Inquisitions of the Yorkshire Eecord Society. 1 Brunner, Die Zulassigkeit der Anwaltschaft, Zeitschrift fiir vergleiohende Bechtswissenschaft, i. 321 ; Brunner, D. B. G-. ii. 349. 2 Leg. Henr. 46, 47, 48, 49, 61 § 18, 19. ' Leg. Henr. 46 § 3 : ' Bonum autem est, ut cum alicuius consilium in placito redditur, cum emendatione dioendum praedicatur, ut si forte perorator vel superadiecerit aliquid, vel omiserit, emendare liceat ei. Saepe enim fit, ut OH. VI. J The Age of Bracton. 191 pleader makes his way into the courts, not as one who will represent a litigant, but as one who will stand by the litigant's side and speak in his favour, subject however to correction, for his words will not bind his client until that client has expressly or tacitly adopted them. Perhaps the main object of having a pleader is that one may have two chances of pleading correctly. Even in the thirteenth century one may see the pleader disavowed. One John de Planez in pleading for William of Cookham called Henry II. the grandfather instead of the father of King John; William disavowed the plea and the advocate was amerced for his blunder'. And so before any one is taken at his pleader's words, it is usual for the court to ask him whether he will abide by those words^ Just because the pleader makes his appearance in this informal fashion, as a mere friend who stands by the litigant's side and provisionally speaks on his behalf, it is difficult for us to discover whether pleaders are commonly employed and whether they are already members of a professional class. The formal records of litigation take no notice of them unless they are disavowed'. It is otherwise with the attorney, for the attorney represents Attomies. his principal : he has been appointed attorned (that is, t urned to the business in hand), and for good and ill, for gain and loss {ad Iticrandum et perdendv/m) he stands in his principal's stead. In England and in other countries the right to appoint an attorney appears as no outcome of ancient folk-law; it is a royal privilege. The king in this as in many other respects has put himself outside the old law: he appoints representatives to carry on his own multitudinous litigations and the privilege that he asserts on his own behalf he can concede to others. Already in Glanvill's day every one who is engaged in civil litigation in the king's court enjoys this right of appointing an in sua causa quis minus -videat quam in alterius, et in ore alterius plerumque poterit emendare quod in suo non lioeret.' 1 Bracton's Note Boot, pi. 298. So in pi. 131 : ' deadTocat quod narrator suus pro eo narravit.' So in pi. 1106: 'Alanus de Waxtonesham qui narravit pro Eustachio in miserioordia, quia Eustachius deadvooavit id quod pro eo narravit.' 2 The Court Baron (Selden Soo.), p. 41. Eeferenoes to this practice may be found in the Year Books, e.g. Y. B. 33-5 Edw. I. p. 297, 458. ' Mat. Par. Chron. Maj. iii. 124. It is noticed as a somewhat strange thing that in 1227 the king's brother Earl Eichard of Cornwall should urge his claims before the king 'sine aliquo advocato rationabiliter simnl et elo- quenter,' 192 The Age of Bractmi. [bk. i. attorney, or rather, for the word attorney is hardly yet in use, a responsalis^. But the right is a narrowly limited one. The litigant has to appear before the court in his proper person and has there to put some one else in his stead to gain or lose in some particular plea. Whatever is more than this can only be accomplished by means of a royal writ. Thus it is only under a royal writ that a man can have a general prospective power of appointing attornies to act for him in whatever litigation he may be involved in^ Such writs are by no means matters of course; they usually recite some special reasons why an ex- ceptional boon should be granted : — the grantee is going abroad on the king's business, or he is the abbot of a royal monastery and too old or too infirm for laborious journeys'. In the old communal courts a litigant could not appoint an attorney unless he had the king's writ authorising him to do so*. Attornies The attomies of the period which is now before us do not stonai. ^^' seem to be in any sense ' officers of the court,' nor do they as yet constitute a closed professional class. Probably every ' free and lawful ' person may appear as the attorney of another ; even a woman may be an attorney" and a wife may -be her husband's attorney". A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally however as we look down the list of attornies we see the same names repeating themselves and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A great change comes in Edward I.'s day which gives a new definiteness to the class of attornies as well as to the class of counsellors. Profes- Recurring for a moment to the class of counsellors, we sMua p ea- o^,ggj,yg ^jj^t Richard of Anesty, when he prosecuted his tedious suit, followed the royal court in its peregrinations with a group of 'friends and helpers and pleaders' in his train'. For his litigation in the ecclesiastical courts he of course required 1 Glanvill, lib. xi. 2 See Stat. West. ii. c. 10 which gave a general right to appoint an attorney to appear in all causes which should come before the justices in a given eyre. ^ Begistrum Brevium Originalium, f. 20-22. ■■ Britton, vol. ii. p. 357. = Select Civil Pleas, pi. 141. 8 Braoton's Note Book, pi. 342, 1361, 1507. ' See above, p. 187. CH. VI.] The Age of Bracton. 193 professional aid, and he had it from Italian lawyers resident in this country; one of them was Master Ambrose who was in every sense one of the first lawyers in England, iirst in time as well as first in learning^ But even in the king's court he was surrotmded by friends and helpers and pleaders, and among them was Ranulf Glanvill, not as yet sheriff of Yorkshire, much less justiciar of the realm ^. For a long time however we hear very little of professional counsellors, of men who are ready to sell their skill in pleading. This is the more noticeable because Matthew Paris is full of complaints against the pack of bellow- ing legists whom the king employs and whom he lets slip whenever an episcopal election goes against his wishes'. These legists are not men professionally skilled in English law, they are romanists and canonists ; many of them are foreigners ; one of the most infamous of them, if we judge them by Matthew's report, is the renowned Hostiensis^ The only persons who are mentioned as learned in English law are the king's justices^ and they to all appearance have been selected, not out of a body of advocates seeking for employment from the general public, but from among the king's civil servants, the clerks of his court and of his chancery and those laymen who have done good work in subordinate offices. However when in his account of the year 1235 Paris tells us how Henry sought to crush the aged Hubert de Burgh with accusations, he represents Hubert's faithful counsellor Lawrence of St Albans as having to contend against 'all the advocates of the bench whom we commonly ^ Gesta Abbatum, i. 136. 'Eobertus [Abbas S. Albani] Magistrum Ambrosium, clericum suum, legia peritissimum, Italicum uatione (de primis tempore, scientia et moribus, Angliae legis peritis) Bomam...deatiDavit.' ^ On 31 March 1168 Glanvill appeared along with Anesty at Windsor ; at Michaelmas in that year he became sheriff of Yorkshire. " Mat. Par. Chron. Maj. iii. Ill : ' Eicardus de Marisoo Dunelmensis episcopus...cum tumoltu valido reboantium legistarum.' Ibid. 531 'Miserat enim [rex] ad curiam Eomanam unum legistarum suorum, quorum magnam catervam retinuit, quasi venator canes yenaticos, super electores praelatorum discopulandos, videlicet Simonem Kormannum.' Ibid. 268 'Bogerum de Cantelu legistam'; 488 'Magister Odo [de Kilkenny] legiata'; 491 'legistas suas Eomipedas'; 491 'Simonem Normannum et Alexandrnm Saecularem legistas condactitios'; iv. 266 'Alexandrum legistam, cognomento Saecu- larem.' ' See above, p. 101-2. ' Thus, iii 190 Pateshull is 'legum terrae peritus'; iii. 525 Ealeigh is 'legum terrae peritissimus'; iv. 49 Multon is 'legis peritus'; iv. 587 William of Tori is ' legum regni peritissimus.' P. M. 13 194 TJie Age of Bracton. [bk. i. call counters'.' In 1268 'a counter of the Bench' assaulted a justice of the Jews in Westminster Hall ; his fellow counters interceded for him^ The king already seems to have per- manently retained a number of persons to plead his causes for him ; but whether these men are free to plead for other people when the king's interests are not in question, and whether they aspire to any exclusive right of audience we do not know. But lawyers seem to have rapidly taken possession of the- civic courts in London. In 1259 the king was compelled to concede to the citizens that in their hustings and other courts they might plead their own causes without lawyers (caitsidici), saving pleas of the crown, pleas of Jand, and pleas of unlawful distraint'. This looks as if in London there had been an unusually rapid development of a professional caste. By this time the practice of the ecclesiastical courts would serve as an example. The attorney is the temporal equivalent for the canonical proctor, and the ' narrator ' or ' counter ' is the temporal equivalent for the canonical advocate. In 1237 the legatine constitutions of Cardinal Otho had ordained that no one was to serve as an advocate in an ecclesiastical court, except in certain exceptional cases, until he had taken an oath before his bishop to do his Eegniation duty and not to pervert justice'. Thus a close body of pro- ana attor- fessional advocates was formed and this would serve as a model "*?■ for a similar body of professional ' counters.' Then in Edward I.'s day we see that the king has a number of pleaders who are known as his servants or Serjeants at law (servientes ad legem). Already in 1275 it is necessary to threaten with imprisonment 'the Serjeant counter' who is guilty of collusive or deceitful practice^ Also there seem to be about the court many young men who are learning to plead, and whose title of 'apprentices' suggests that they are the pupils of the Serjeants. We may infer that already before .1292 these practitioners had acquired an exclusive right to be heard on behalf of others. In that year king Edward directed his justices to provide for every county a ' Mat. Par. Chron. Maj. iii. 619 ' licet Bex cum omnibus proloeutoribus banoi quos narratores vulgariter appellamus in contrarium niteretur.' The Latin narrator and its French equiyalent contour became technical terms. If an English term was in use, it was perhaps /tw^pcafter. 2 Madox, Exchequer, i. 236. " Liber de Antiquis Legibus, "42-3. « Mat. Par. iii. 439-440. 6 gjat. West. I. o. 29. CH. VI. J The Age of Bracton. 195 sufiBcient number of attomies and apprentices from among the best, the most lawful and the most teachable, so that king and people might be well served. The suggestion was made that a hundred and forty of such men would be enough, but the justices might, if they pleased, appoint a larger number^. By this measure, which may not however have been the first of its kind, ' both branches of the profession ' were placed under the control of the justices, and apparently a monopoly was secured for those who had been thus appointed I Some twelve years earlier the mayor and aldermen of London had been compelled to lament the ignorance and ill manners of the pleaders and attomies who practised in the civic courts; and to ordain that none should habitually practise there who had not been duly admitted by the mayor. They added that no counter was to be an attorney, and thus sanctioned that ' separation of the two branches of the profession ' which still endures in England ; but really, as we have already seen, these two branches had different roots : — the attorney represents his client, appears in his client's place, while the counter speaks on behalf of a litigant who is present in court either in person or by attorney. The civic fathers were further compelled bo threaten with suspension the pleader who took money with both hands or reviled his antagonist'. It is from 1292 again that we get our first Year Book and we see that already the great litigation of the realm, the litigation which is worthy to be reported, is conducted by a small group of men. Lowther, Spigomel, Howard, Hertpol, King, Huntingdon, Heyham — one of them will be engaged in almost every case. Nor is it only in the king's court and the civic courts that the professional pleader is found. Already in 1240 the Abbot of Kamsey ordained that none of his tenants was to bring a pleader into his courts to impede or delay his seignorial justice*, and in 1275 we find one William of Bolton practising in partnership with other pleaders before the court 1 EoUs of Parliament, i. 84. 2 So early as 1253 the bishop of Eochester was impleaded by the archbishop of Canterbury in the king's court ' et Abell de S. Martino venit et narravit pro episcopo et non fuit advocatus; ideo in miserioordia'; Placit. Abbrev. 137. We can not be quite certain that the objection to Abel was that he was not a member of the legal profession ; perhaps the bishop had given him no authority to plead his cause. 3 Liber Custumarnm, i. 280 (a.d. 1280). 4 Cart. Bams. i. 428. 13—2 196 The Age of Bracton. [bk. i. of the fair of St Ives'. Many details are still obscure — we may have an opportunity of discussing them at another time — but in Edward I.'s day it is that our legal profession first begins to take a definite shape. We see a group of counsel, of Serjeants and apprentices on the one hand, and a group of professional attomies on the other, and both of them derive their right to practice from the king either mediately or immediately^ Profes- So soon as there is a legal profession, professional opinion is nk>™ °*' among the most powerful of the forces that shape the law, and at an early time we may see it exercising its influence directly as well as indirectly. In Edward I.'s day it is impossible to uphold a writ which 'all the Serjeants' condemn, and often enough to the medieval law reporter ' the opinion of the Serjeants' seems as weighty as any judgment". Decline of That the professional pleader of Edward I.'s day had learnt ' law as a science, had attended lectures or read books, we do not know; very probably his education had generally been of a purely empirical kind. Sometimes he was a legist. In 1307 a judge says to counsel ' Passeley, you are a legist and there is a written law which speaks of this matter, Gogi possessorem etc.*.' A certain knowledge of, and reverence for, the broader maxims of 'the written law' is apparent. 'Volenti non fit iniuria,' ' Melior est conditio possidentis,' ' Res inter alios acta,' such phrases as these can be produced in court when there is occasion for them^ They could be found somewhat easily; the Decretals of Pope Boniface VIII. end with a bouquet of these sonorous proverbs'. When in any century from the thirteenth to the nineteenth an English lawyer indulges in a Latin maxim, he is generally, though of this he may be profoundly ignorant, quoting from the Sext. But we have only to look at manuscripts of Bracton's text to see that the influence of Roman law is on the 1 Pleas in Manorial Courts (Selden Soc.) 155, 169, 160. 2 Walter of Hemingford (ed. Hearne) ii. 208 tells how in 1304 the Abp. of York was impleaded. 'None of his counsel nor any of all the pleaders (narratores) could or dared answer for him. So in his own person, like one of the people, and before all the people, he made his answer bareheaded : — for the men of the court did not love him.' 3 See e.g. Y. B. 30-1 Bdw. I. p. 107. " Y. B. 33-5 Edw. I. p. 471. The allusion is to Cod. 3. 31. 11 ; ' Cogi possessorem ab eo, qui expetit, titulum suae posaessionis dioere, incivile est.' s, Y. B. 33-5 Edw. I. p. 9 ; 30-1 Edw. I. p. 57 ; 21-2 Edw. I. 296. " De reffuUs iuris, in vi'°. CH. VI.] The Age of Bracton. 197 wane, is already very slight. Transcribers who can copy cor- rectly enough good homely stuff about the assize of novel disseisin, make utter nonsense of the subtler discussions which Bracton had borrowed from Azo. A climax is reached when the actio familiae herciscundae has become an action about the family of the lady Herciscunda, or, since even her name is outlandish, the lady of Hertescombe, who probably had estates in Devonshire*. In England that Roman institution the notarial system Notaiies never took any deep root". Our kings did not assume the veyanceis imperial privilege of appointing notaries, nor did our law require that deeds or wills or other instruments in common use should be prepared or attested by professional experts. Now and again when some document was to be drawn up which would demand the credence of foreigners, a papal notary would be employed. It was a papal notary who drew up the most magnificent of all the records of King Edward's justice, the record of the suit in which the crown of Scotland was at stake^. But it is worthy of remark that while in our temporal courts the art of recording pleas had been brought to a high degree of perfection, the English ecclesiastical courts seem to have borne among con- tinental canonists a bad repute because of their careless and inartistic records. This we learn from an Italian notary, one John of Bologna, who dedicated to Archbishop Peckham a collection of judicial precedents, destined — so its author hoped — to reform our slovenly insular documents'. In later days there were always some apostolic notaries in England ; in the 1 Britton (ed. Nichols) ii. 65. 2 Constitutions of Otho (1237), Mat. Par. iii. 438: 'Quoniam tabeUionum usus in regno Angliae non habetur.' See Selden, Titles of Honour, Works, ed. 1726, vol. iii. pp. 131-2, 467. A book of English precedents of the thirteenth century remarks that for a bond two witnesses with the tabellio or notary are enough ; see L. Q. E. vii. 66 ; but the mercantile bond should be so attested that it wiU be valid in foreign courts. 3 Foedera, i. 784 : ' Ego Johannes Erturi de Cadomo apostolioae sedis auctoritate notarius.' This John Arthur of Caen was a master of the chancery. ^ Bethmann-HoUweg, Civil Prozess, vi. 189, gives an account of this book. The author says to the Archbishop, ' Cum solempnis vestra curia et regnum Angliae quasi totum personis careat, quae secundum formam Eomanae curiae vel idoneam aham qualemcunque inteUeotum et notitiam habeant eorum quae ad artem pertinent notariae.' From the ignorance of the English scribes ' iudicibus obprobrium et partibus incommodum saepe proveniunt.' 198 The Age of Bracton. [bk. i. fourteenth century the testament of a prelate or baron will sometimes take the form of a notarial instrument. But an acquaintance with the law of the land sufficient to enable one to draw a charter of feoffment, a lease, a mortgage, a will, was in all likelihood a common enough accomplishment among the clergy, regular and secular. If we closely scan the cartulary of any rich religious house, we shall probably infer that it had its own collection of common forms. It is quite conceivable that some instruction in conveyancing was given in the univer- sities. From the second half of the thirteenth century we begin to get books of precedents, and sometimes the formulas of purely temporal transactions will be mixed up with instruments destined to come before the ecclesiastical courts'. From the Norman Conquest onwards the practice of using written instru- ments is one which slowly spreads downwards from the king's chancery. The private deeds (cartae) that have been preserved are for the more part very brief, clear and business-like instru- ments; they closely resemble those that were executed in northern France. The most elaborate documents are those which proceed from the king's court. If one wishes to do with land anything that is at all unusual, one does this by means of a fictitious action brought and compromised in the king's court ; the instrument which records this compromise, this ' final con- cord' or 'fine,' will be drawn up by the royal clerks and one copy of it, the so-called ' foot of the fine,' will remain with the court. By this means before the thirteenth century is out some complex 'family settlements' are being effected. Also the Lombard merchants have brought with them precedents for bonds, lengthy, precise and stringent forms, which they compel their English debtors to executed Knowieage On the whole it is hard for us to determine the degree to of the law. i ■ i i i . . ° Which at the beginning of Edward I.'s reign knowledge of the law had become the exclusive property of a professional class. On the one hand there were many things in Bracton's book which were beyond the comprehension of the laity — some things, we suspect, that were too refined even for the ordinary lawyer— and it was fully admitted that the prudent litigant ^ Maitland, A Conveyancer in the Tliirteenth Century, L. Q. B. vii. 63 ; The Court Baron (Selden Soo.) pp. 7, 12-14. ' A good specimen is given in Mat. Par. iii. 329 ; but many may be found elsewhere. CH. VI.] The Age of Bracton. 199 should employ a skilful pleader' ; even the writer of the Leges Henrici had observed that one better understands another person's cause than one's own''. But the group of professional lawyers which had formed itself round the king's court was small; the king's permanent justices were few, the Serjeants were few, and some seven score apprentices and attornies seemed enough. A great deal of legal business was still being trans- acted, a great deal of justice was being done, by those who were not professional experts. The knight, the active country gentleman, would at times be employed as a justice of assize or of gaol delivery besides having to make the judgments in the county court. The cellarer of the abbey would preside in its manorial courts and be ready to draw a lease or a will. The freeholders of the shire besides having to attend the communal and the manorial courts would have hard work to do as jurors ; often Would they be called to Westminster, and as yet the separation of matter of law from matter of fact was not so strict that a juror could afford to know nothing of legal rules. In one way and another the common folk were constantly receiving lessons in law ; the routine of their lives often took them into the courts, even into courts presided over by a PateshuU, a Raleigh, a Bracton. This healthy co-operation of all sorts and conditions of men in the work of the law. prevents the jurist from having it all his own way and making the law too fine a thing for common use. English law was already spreading beyond the bounds of English England. In 1272 the time had almost come when Wales waies. would be subjugated and Edward's great Statutum Walliae^ the most comprehensive code that any English legislator issues during the middle ages, would be promulgated. Meanwhile in the marches English and Welsh law had met; but the struggle was an unequal one, for it was a struggle between the modern and the archaic. Welsh law had indeed a literature of its own, but had hardly passed that stage which is represented in England by the Leges Henrici. No doubt there were those who cherished the old tribal customs. The men of Urchinfield, a district within the English county of Hereford, tell the king's justices that the manslayer may make his peace with the ' T. B. 30-1 Edw. I.: 'Defaute de bon serjant fet B perdre sez deniers.' ° Leg. Henr. 46 § 3. ' Statutes, i. 55. 200 The Age of Bracton. [bk. English law in Ire- land. Englisli and Scot- tish law. kinsmen of the slain and they ask that this ancient usage may be observed ^ On the other hand the men of Kerry, which lies within the modern county of Montgomery, petition the king that they may live under English law, because that law has suppressed the blood feud and does not punish the innocent along with the guilty". The old law of blood feud and wergild, or galanas as the Welsh call it, will die hard in Wales ; still it is doomed to die and along with it the tribal system whence it springs. Into Ireland Englishmen have carried their own law; a smaller England has been created across the channel, with chancery, exchequer, ' benches,' council, sheriffs, coroners, all reproduced upon a diminished scale. Statutes and ordinances and ' the register of original writs ' were sent from England into Ireland; the king's English court claimed a supremacy over his Irish tribunals and multitudinous petitions from Ireland came before the English council at its parliaments'- It is probable however that even in those parts of Ireland which were really subject to the English domination the native Irish were suffered to live under their old law so long as they would keep the king's peace. Individual Irishmen, like the men of the Welsh Keny, petitioned that they might be allowed the benefits of English law ; they probably meant by this that they wished their lives protected by a law which knew how to hang a manslayer instead of suffering him to purchase peace by wergild or ' eric ' fine *. Whether the king of Scotland was in any degree subject to the king of England, was a question about which Englishmen and Scotsmen would have disagreed in the year 1272 and about which "bhey will hardly be brought to agree even now. 1 Note Book, pi. 1474. ' Eoyal Letters, Henry III., vol. ii. p. 353: 'Vestram rogamus regiam dignitatem quatenus. . .leges terrarum vestrarmn ubique per Walliam et per Marohiam nobis ooncedere velitis, et hoc est, quod innocens non puniatur pro nocente, nee etiam imputetur parentelae alicuius si aliquis de parentela interfecerit aliquem vel furtum vel aliquam seditionem [fecerit] nisi ipsi malefactori.' ' As to the transmission of the register, see Harvard Law Eeview, iii. 110. For an early case in which an Irish judgment is corrected in England, see Eot. CI. p. 549 ; there are several other cases on the roUs of Edward I. For Irish petitions to the English council, see Parliament Boll of 33 Edw. I. (Bolls Series), p. 232. * Parliament Roll, 33 Edw. I. pp. 253-4. CH. vi.J The Age of Bracton. 201 Old precedents of homage and release from homage were being treasured up on either side of the border and were soon to be brought into debate. But the utmost claimed for the English king was a mere feudal overlordship, and English law as English law had no power north of the Tweed. Nevertheless we may well doubt whether a man who crossed the river felt that he had passed from the land of one law to the land of a different law. In the first place, for some while he would have known himself to be under a law settled and put in writing by a joint committee of English and Scottish knights, the law of the marches, which decided that whenever a charge of felony lay between Englishman and Scot there must be trial by battle: — he would have known himself to be under a true international law^ But suppose him served with a writ; he might notice the name of Henry where he was accustomed to see Alexander, or the name of some Scottish burgh in the place of the familiar Westmonasterium ; but nothing else in the writ would seem strange. If the proper names be omitted, we shall hardly now tell a Scottish charter of feofifment from an EJnglish, and the few Scottish records of litigation that have come down to us from the thirteenth century might have been written by the clerks of Robert Bruce, the chief justice of England. Of what went on north of Forth it is not for us to hazard a single word, but for long ages past the law that prevailed between Forth and Tweed must have been very like the law that prevailed between Tweed and Humber. And then, if Frankish feudalism in the guise of a Norman army had con- quered England, it had almost as effectually though in more peaceful guise conquered whatever of Scotland was worthy of conquest. On the whole for a long time past the" two nations, if two nations we must call them, had been good friends ; the two kingly families had been closely related to each other and had seen a good deal of each other. Many a great baron can hardly have known to which nation he belonged. The concen- trated might of the English kingship, the imperious chancery, the exact and exacting exchequer, were ideals for the Scottish king; the English baron may well have yearned for franchises and regalities that were denied to him but enjoyed by his Scottish peers. The problem of the Regiam Maiestatem, the 1 Acts of Parliament of Sootland, i. 413 ; Neileon, Trial by Combat, 126. 202 The Age of Bracton. [bk. i. Scottish version of GlanvilFs book, we must not try to solve ; but it seems clear enough from abundant and indisputable evidence that at the outbreak of the war of independence, the law of Scotland, or of southern Scotland, was closely akin to English law ^. That it had been less romanized than English law had been, is highly probable, no Bracton had set it in order by the method of the Summa Azonis. That it was less uniform than was English law, is also highly probable; the Scottish kingship was not so strong as was the English, and in Scotland there were ethnical differences impeding the pro- gress of a common law. These seem to be the main causes which, when enforced during the struggle for independence by a loathing for all that was English, sever the stream of Scottish from that of English legal history. Romanism must come sooner or. later; the later it comes the purer and the stronger it will be, for it will have freed itself from medieval glosses. Uniformity if it can not be evolved from within, must be imported from without. Thus in the end Roman law has to be received in Scotland as subsidiary and academic law. Precocious A comparison of the legal systems of various states as they English were at some remote point of time will always be a difficult ^^' task even for one who knows the history of each separate system. But if we could look at western Europe in the year 1272, perhaps the characteristic of English law which would seem the most prominent would be its precocity. Its substance was, to say the least, as modem and enlightened as was that of the systems with which it could be profitably com- pared. It had suppressed some archaisms which might still be found in France or at any rate in Germany. It knew nothing of the wergild save as a trait of Welsh barbarism ; at the pope's bidding it had abolished the ordeal ; it was rapidly confining the judicial combat and the oath with oath-helpers within very narrow limits. But we would speak rather of its form than of ^ In Acts of Parliament of Scotland, vol. i., Begiam Maiestatem is collated with Glanvill. The present state of the question as to its date may be gathered from Neilson, Trial by Combat, pp. 99 — 104. Of all the various theories that have been started, that vrhich ascribes it to Edward I. will seem to an EugUshmau the most improbable. If Edward had attempted to foist an English law book on Scotland, that book would have been founded on Bracton or Britton and not on the antiquated Glanvill. The English law that is borrowed is distinctly law of the twelfth century. CH. VI.] The Age of Bracton. 203 its matter. The great charter, the provisions of Merton and Marlborough, the minor ordinances, these in 1272 constituted what we must here call a large body of definitely enacted law. And if in one sense England was never to be a ' country of the written law,' it had become preeminently the country of the written record. Every right, every remedy must be made definite by writing ; if it can not find expression in some chancery formula, it must cease to exist. Then again English law is becoming the law of one court, or of a small group of intimately connected courts, the law of Westminster Hall, the law that in its full perfection is known only to some dozen men, the king's justices. Every right, every remedy, is being sharpened and hardened by the ceaseless activity of a court which in the course of a year decides thousands of cases, the greatest and the smallest, coming to it from all corners of the land. Uniformity is thus secured and even a certain simplicity, for some parts of our common law, notably the law of status, must, if we have regard to continental systems, be called sur- prisingly simple. Closely connected with its uniformity is another distinctive trait: — in England the law for the great men has become the law for all men, because the law of the king's court has become the common law; for example, the primogenitary rules of inheritance are rapidly spreading down- wards from their native home among the military fees through all the subjacent strata, and the one ' formal contract ' of English law can be made only by those who can write or hire others to write for them. Certainty also has been attained; Bracton's hands are far less free than are the hands of Philip Beaumanoir or the hands of Eike of Repgau ; at every moment he has to be thinking of the formulas in the chancery's register. English law is modem in its uniformity, its simplicity, its certainty ; it is modern also in the amount of romanism that it has absorbed. In Germany the theoretical sanctity of Jus- tinian's texts has as yet borne little fruit in practice; in northern France the new Roman jurisprudence is still lying on the surface and hardly beginning to mix with the traditional customs, while in England it has already done a great work, and almost all the work that it will ever do. But all these modern excellences are being purchased at a price which may be heavy. The judges can no longer introduce much that is 204 The Age of Bracton. [bk. 1. new ; they know nothing of any system but their own ; Roman law has lost its glamour. All now depends upon those who will wield the legislative power in this country, upon the ' sovereign one ' or the ' sovereign many.' A vigilant, an enlightened, an expert legislator may be , able to keep this rigid formulary system in harmony with the ever changing necessities of man- kind, introducing new 'forms of action' and (for this will be equally necessary) ruthlessly abolishing all that is obsolete. But unless we are to have this continuous legislative activity — and we can hardly have it without despotism — the omens for the future of English law are not very favourable. It may easily become a commentary, an evasive commentary, on an- tique writs and statutes; it will circumvent by tortuous paths the obstacles that it can not surmount; archaic institutions which the rationalism of the thirteenth century had almost destroyed, wager of battle, wager of law, will live on until the nineteenth, moribund but mischievous. It may become an occult science, a black art, a labyrinth of which the clue has been lost. But now, having brought down our general sketch of the growth of English law to the accession of Edward I., 'the English Justinian,' we may turn to an examination of its rules and doctrines as we find them in the age of Glanvill and the age of Bracton. BOOK II. THE DOCTEINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES. OHAPTEE I. TENURE. How best to arrange a body of medieval law for the use of Arrange- modern readers, is a difficult question. Of the two obvious this book, methods, each has its disadvantages. On the one hand if we were to adopt the arrangement which would be the best for a code or digest of our modem law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distractions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no existence. On the other hand were we to aim at such an arrangement as a medieval lawyer would himself have adopted, the result would be. to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words. The arrangement of Bracton's treatise will for a moment Possible seem one that is familiar enough to every lawyer; it is the arrange- most famous of all arrangements. Following the Institutes he 5^?^^,^ treats of (1) Persons, (2) Things, (3) Actions. But if we- may ™|'^^™^f take the number of folios given to each of these topics as an law. indication of its importance in his eyes, we find that the relation between them may be expressed by the figures 7:91: 356. Nor is this all : — it is to his ' law of actions ' that we have chiefly to look for substantive English law. To a high degree in his treatment of ' persons,' to a less but still marked degree in his treatment of 'things,' he is very dependent on Azo and Roman Law; it is only as he approaches the law of 208 Tenure. [bk. il. ' actions ' that we begin to know that he is giving us practicable English law and not speculative jurisprudence. It is out of chapters devoted to procedure and pleading that we have to get some of the great rules about ownership, possession and the like. As to Glanvill, the whole of his book is, we may say, devoted to the law of actions ; he plunges at once into an account of the writ of right ; while such arrangement as the Leges Henrici have, puts jurisdiction and procedure in the fore- front. That characteristic mark of ancient bodies of law, the prominent place given to what we sometimes speak of as ' adjective law,' the apparent subordination of rights to remedies, is particularly noticeable in our own case, and endures until modern times ; and naturally, for our common law is the law of courts which gradually acquired their jurisdiction by the development and interpretation of procedural formulas. Still though we shall have to say much about the ' forms of action,' we need not introduce the rules of property law as though they were but subsidiary to the law about assizes, writs of right and actions of trespass. (2) The The danger that would be run were we to follow the other scheme, of the two courses proposed above, may be illustrated by reference to that division of law into ' public ' and ' private ' which seems eminently well suited to be among the first out- lines of any institutional work on modern law. Bracton knew of the distinction and could notice it as a matter of scholastic learning; but he makes little or no use of it\ He could hardly have used it and yet dealt fairly with his materials. Feudalism, we may say, is a denial of this distinction. Just in so far as the ideal of feudalism is perfectly realized, all that we call public law is merged in private law ; jurisdiction is property, office is property, the kingship itself is property; the same word dominium has to stand now for ownership and now for lordship. Again the notion put forward by a modern writer^ that ' public 1 Bract, f. 3 b : ' Est autem ius publicum quod ad statum reipublioae {al. cod. rei Eomanae) spectat...ius autem privatum est quod ad singulorum pertinet utilitatem prinoipaliter et seoundario pertinet ad rempublicam.' On the general ground that a copyist is more likely to have discarded than to have reintroduced the allusion to Eome, rei Romanae seems the preferable reading ; it is also the reading of the best mss. A germ of the distinction between public and private law may be found in Bracton's treatment of suit of court, f. 37, and franchises, f. 55 b ; but it is not made prominent. 2 Austin, Jurisprudence, i. 69-71 CH. I.] Tenure. 209 law' is but a department of the 'law of persons,' however inapplicable to the law of modern states, may sometimes be applied with advantage to the law of the middle ages. Any such conception as that of 'the state' hardly appears on the surface of the law ; no line is drawn between the king's public and private capacities, or it is drawn only to be condemned as treasonable. The king, it is true, is a highly privileged as well as a very wealthy person ; still his rights are but private rights amplified and intensified. He has greater rights than any other lord ; but it is a matter of degree ; many lords have some 'regalities,' the Earl of Gloucester has many, and the Earl of Chester has more. Certainly it would be easy for us to exaggerate the approach made in any country, more especially in England, to the definite realization of this feudal ideal ; but just in so far as it is realized, ' public law ' appears as a mere appendix to ' real property law,' modified in particular cases by a not very ample ' law of persons.' But albeit we can not adopt either of these two methods to Our own COUI^S6 the neglect of the other and must consider both medieval lawyers and modem readers, we need not work without a plan. In any body of law we are likely to find certain ideas and rules that may be described as elementary. Their elementary character consists in this, that we must master them if we are to make any further progress in our study; if we begin elsewhere, we are likely to find that we have begun in the wrong place. Only some experience of the particular body of law that is in question will direct us to the proper quarter ; but as regards the law of the feudal time we can hardly do wrong in turning to the law of land tenure as being its most elementary part. We shall begin therefore by speaking of land tenure, but in the first instance we shall have regard to what we may call its public side ; its private side we may for a while postpone, though we must not forget that this distinction between the two sides of property law is one that we make for our own convenience, not one that is imposed upon us by our authorities. From land tenure we shall pass to consider the law of personal condition. The transition will be an easy one, for the broadest distinction between classes of men that will come before us, the distinction between free men and men who are not free, is intricately connected with land tenure, in so much that the same word villenagiwn is currently used to p. M. 14 210 Tenure. [bk. ii. denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law ; and along with the law of jurisdiction we must examine 'the communities of the land.' Having dealt with these topics we shall, it is hoped, have said enough of political structure and public affairs, for those matters which are adequately discussed by historians of our constitution we shall avoid. Turning then to the more private branches of our law, we shall take as our chief rubrics ' Owner- ship and Possession,' 'Contract,' 'Inheritance ' and 'Family Law,' while our two last chapters will be devoted, the one to ' Crime and Tort,' the other to ' Procedure.' We are well aware that this arrangement may look grotesque to modem eyes; since, for example, it thrusts the law of persons into the middle of the law of property. Our defence must be that after many experiments we have planned this itinerary as that which will demand of us the least amount of repetition and anticipation, and therefore enable us to say most in the fewest words. We shall speak for the more part of the law as it stood in the period that lies between 1154 'and 1272. This will not prevent us from making occasional excursions into earlier or later times when to do so seems advisable, nor from looking now and again at foreign countries; but with the age of Glanvill and the age of Bracton we shall be primarily concerned. Again, we shall be primarily concerned with the evolution of legal doctrines, but shall try to illustrate by real examples some of the political and economic causes and effects of those rules that are under our examination. We have not to write a practical hand-book of medieval law, nor, on the other hand, have we to describe all the legal elements that are involved in medieval life and thought. — But an abstract discourse about method is seldom very profitable. Therefore without more ado we turn to the law of land tenure and begin with its fundamental dogma. § 1. Tenure in General, Derivative Every acre of English soil and every proprietary right dent *^^" therein have been brought within the compass of a single . formula, which may be expressed thus : — Z tenet terram illam de domino Rege. The king himself holds land which is in tenure. CH. I. § 1.] Tenure in General. 211 every sense his own; no one else has any proprietary right in it; but if we leave out of account these royal denaesnes, then it is true that every acre of land is held of the king. The person whom we might be inclined to call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king ; only the king and he have rights in it ; in such case he is said to hold of the king in chief {in capite); he is one of the king's tenants in chief, or tenants in capite. But it. well may happen that between him and the king there stand other persons ; Z holds immediately of Y, who holds of X, who holds of V, who holds of A, who holds of the king. Let us take one real instance ; — in Edward I.'s day Roger of St.German holds land at Paxton in Huntingdon- shire of Robert of Bedford, who holds of Richard of Ilchester, who holds of Alan of Chartres, who holds of William le Boteler, who holds of Gilbert Neville, who holds of Devorguil Balliol, who holds of the king of Scotland, who holds of the king of England '. A feudal ladder with so many rungs as this has, is certainly uncommon ; but theoretically there is no limit to the possible number of rungs, and practically, as will be seen hereafter, men have enjoyed a large power not merely of adding new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it. The person who stands at the bottom of the scale, the person who seems most like an owner of the land, and who has a general right of doing what he pleases with it, is said to hold the land in demesne ; Z tenet terram in doniinico, or in dominico suo ''. We suppose that he holds it of F; in that case Y is the lord (dominus) of Z, and Z is the tenant (tenens) of Y. But Y again is said to hold the land ; he holds it however not in demesne but in service (tenet terram illam, non tarnen in dominico sed in servitio); and Y again must hold it of someone — let us say of X — whose tenant he will be, who will be his lord, and who also will be said to hold the land in service. Ultimately we shall reach the king ; A, or some other person, will hold the land immediately of the king and be his tenant in chief Every person who 1 Eot. Hvmd. ii. 673. 2 This statement will require some qualification hereafter when we speak of the unfree tenures. 14—2 212 Tenure. [bk, ii. stands between the king and him who holds in demesne, every mesne lord or mesne, is both lord and tenant, lord as regards those who stand below him, tenant as regards those who stand above ^. \ Universa- Before attempting to analyze this notion or, S^endent and dependent derivative tenure, let us first observe how universally it has tenure. ^^^^^ applied ''- Not only has every acre of land been brought within its scope, so that the English lawyer can not admit even a bare possibility of land being holden of no one, but the self-same formula has been made to cover relationships which have very little in common. An Earl of Chester, who may at times behave like a sovereign prince, holds his county palatine of the king ; the cottier, who like enough is personally unfree, holds his little croft of some mesne lord, or of the king himself Even when of late a new mode of cultivating the soil has made its appearance and lords have let land to farmers for terms of years at substantial money rents, this new relationship has been brought within the old formula ; the lessee holds the land of the lessor. Even when the tenant has no rent to pay, no temporal service to perform, even when the land has been devoted to God and the saints and is possessed by a religious ' In later days the term ' tenure in oapite ' waa sometimes used as though it were equivalent to ' tenure in oapite of the crown ' and even to ' tenure in oapite of the crown by knight's service.' In the Baronia Anglioana, Madox has suffi- ciently proved that this use of the term was an innovation. See also Hargrave's notes to Co. Lit. 108 a. In the thirteenth century the term ' in oapite ' is merely equivalent to ' immediately,' ' sine medio ' ; thus even a burgage tenant may have ' tenants in oapite ' holding of him: Ann. Dunstap. p. 173. Again in the time of Henry I. Eoger holds of Nigel, Nigel of the Earl of Chester; Nigel consents that Eoger shall hold of the Earl ' in oapite, ut vulgo loquitur': Hist. Abingd. ii. 67. See also Madox, Formulare, No. 22; but examples are plentiful. The term was in use in Normandy, where we find an equivalent and expressive phrase, 'Lea fiefs sont tenus nu a mm [Lat. immediate] des seignurs quand il u'y a auloune personne entre eulx e leur tenanta'; Anoienne Coutume (de Gruohy) c. 29. So too a tenant's ' capitalis dominus ' is his immediate lord, not the lord who is chief above his other lords, but the lord who is nearest to him. See e.g. Petition of the Barons, 1258, c. 29 ; Ann. Burton, p. 474, § 13. But perhaps this usage of the term ' chief lord ' is not very consistently main- tained; it was giving trouble in 1304; Y. B. B2-3, Edw. I., p. 39. 2 We use the phrase 'dependent and derivative tenure' instead of saying merely 'tenure,' for though English lawyers have been wont to speak as though the tenure of land was characteristic of feudalism, we ought to remember that long before there was any feudal tenure the verb tenere, sometimes in conjunction with habere, was currently used to describe the possession of land. What is characteristic of feudalism is not tenere terram, but tenere terram de X, CH. I. § l.J Tenure in General. 213 house in free alms, still the formula has been found equal to the occasion ; the religious community holds the land of the donor. We see at once therefore that the formula must be very elastic, that the notion of tenure must be in the highest degree an abstract notion. In England tenure is no mark of a class, and we may say the same of ' feudal ' tenure. The terro. feodum, which in Anglo-French is represented by Feudal fe, fie, fee and in English by fee, is one of the words which came ®""'^*- in with the Conqueror and perhaps for a short while it carried about with it a sense of military or noble tenure ; but very soon it was so widely used as to imply no more than heritability ^ This is its settled sense in the thirteenth century. To say of a tenant that he holds in fee {tenet infeodo) means no more than that his rights are inheritable. He does not hold for life, he does not hold for a term of years, he does not hold as guardian of an heir, or as one to whom the land has been gaged as security for money ; he holds heritably and for his own behoofs. But nothing is implied as to the terms of his holding, the relation between him and his lord. His duties to bis lord • may be onerous or nominal, noble or humble, military or agricultural, but if his rights are heritable, then be holds in fee and the land is feodum suum, at all events if his tenure has about it no taint of villeinage'. Thus we can not, as con- tinental writers do, treat feudal law as something distinct from the ordinary law of the land, a law to be administered by special courts, a law which regulates some but not all of the 1 There are two passages in the Leg. Henr. in vihieh feuduvi seems to signify rather inherited than heritable rights : — 70, § 21, the eldest son is to inherit the father's feodum, while the emptiones and acquwitiones the father may give to whom he will ; here the feodum seems to be the ancestral estate and is opposed to lands acquired by purchase: — 88, § 15, there seems a contrast drawn between the feodum and the conquisitum, though the passage is not very plain as it stands. 2 Glanvill, xiii. 2 ; ' ut de feodo vel ut de vadio. . .ut de feodo vel ut de warda.' Ibid. xiii. 24; land held by a church in free alms is feodum ecclesiasticum. Where a church is tenant, there is of course no inheritance; but the church has a perpetual right in its feodum. 3 Perhaps the tenant in villeinage was not yet spoken of as holding infeodo. Demandants of customary land while closely following the forms by which free land was demanded, seem to avoid saying that their ancestors were seised ' of fee,' while asserting that they were seised 'of right,' or 'of hereditary right'; Manorial Pleas (Seld. Soc), i. 34, 39, 41. On the other hand among the soke- men on the ancient demesne we find seisin in fee freely asserted; Ibid,, 123. 214 Tenure. [bk. il. proprietary rights that men have in land; we can hardly translate into English the contrast which Germans draw be- tween Lehnrecht and La/ndrecht. Our Landrecht is Lehnrecht ; in so far as feudalism is mere property law, England is of all countries the most perfectly feudalized. But this truth has another aspect : — our Lehnrecht is Landrecht ; feudal law is not a special law applicable only to one fairly definite set of relationships, or applicable only to one class or estate of men ; it is just the common law of England. That extensive appli- cation of the feudal formula (F tenet in feodo de X) which is characteristic of England, and which perhaps was possible only in a conquered country, must have impaired its intensive force '. If it has to describe the relation between the king and the palatine earl, the relation (slight enough in England) be- tween the pious founder and the religious house that he has endowed, the relation between the lord of a manor and the tenants who help to plough and reap his fields, the mere ' cash nexus ' between a lessor and a lessee who has taken the land heritably at a full money rent, it can not mean very much. But this collection of the most divers relationships under one head will have important effects ; the lower ' tenures ' will be assimilated to the higher, the higher to the lower; the 'feud' must lose half its meaning by becoming universal ^ Analysis of It is «lear then that of dependent or of feudal tenure in depeudent , t. .1 i • i i tenure. general, little can be said: but still some analysis of it is possible. We may at least notice that it seems to be a complex of personal rights and of real rights. On the one hand, the lord > Brunner, D. B. G., ii. 11: 'Wo jedes Grundeigentum sioh in Lehu ver- wandelt, wird das Lehn, wie die Entwicklung des eugllBohen Eechtes zeigt, sehliesslich zum Begriff des Grundeigentums.' " It is believed that the forms /eud and fief appear in England but late in the day under the influence of foreign books; they never became terms of our law. It is noticeable also that feodum was constantly used in the sense that our fee has when we speak of a lawyer's or doctor's fee; payments due for services rendered, at least if they are permanent periodic payments, are feoda; the judges for example receive /eodo, salaries. The etymological problem presented ' by the Enghsh fee seems no easy one, because at the Conquest the would-be Latin /eod«m (the d in which has puzzled philologists) is introduced among a people which already has feoh as a word for property in general and cattle in particular. It seems possible that the existence of this old word may have aided the process which deprived the imported feodum of that definite sense that it bore on the continent. CH. I. § 1.] Tenure, in General. 215 has rights against his tenant, the tenant rights against his lord : the tenant owes services to his lord, the lord, at least normally, owes defence and warranty to his tenant. On the other hand, both lord and tenant have rights in the land, in the tenement, the subject of the tenure', The tenant in demesne, the tenant on the lowest step of the feudal scale, has obviously rights in the land, amounting to a general, indefinite right of using it as he pleases. But his lord also is conceived as having rights in the land ; we have by no means adequately described his position by saying that he has a right to certain services from his tenant ; of him as well as of his tenant it may be said that he holds the land, not indeed in demesne but in service, that the land is his land and his fee, and even that he is seised, that is, possessed of the land^. What has been said of the demesne tenant's immediate lord, may be said also of that lord's lord ; he also has rights in the land and the land is in some sort his. This when regarded from the standpoint of modern juris- prudence is perhaps the. most remarkable characteristic of feudalism: — several different persons, in somewhat different senses, may be said to have and to hold the same piece of land. We have further to conceive of the service due from the tenant to his lord as being a burden on the tenement. It is service owed by the tenement. This idea is so deeply engrained in the law that the tenement is constantly spoken of as though it was a person who could be bound by obligations and perform duties: hides and virgates must send men to the war, must reap and mow and do suit of court ; ' these two half-hides ought to carry the king's writs whenever they come into the county'.' But the ' After a struggle with other forms, such as tenura, tenuitura, the word tenementum has established itself as the proper word whereby to describe the subject of a tenure. Such a word is the more wanted because terra is often applied in a special sense to arable land; tenementa on the other hand will include houses, meadows, pastures, woods and the like, and will also comprise certain ' incorporeal things.' 2 Phrases showing that the lord is conceived as holding the land are quite common ; see e.g. Bract, f. 432 b, ' Item cum petens totum petat in dominico, tenens respondere potest et cognoseere quod totum non tenet in dominico, sed partim in dominico et partim in servitio.' So also the lord is seised not merely of the tenant's services but of the land ; Bract, f. 81, ' nisi ipse vel anteoessores sui in seisina fuerint de tenemento illo in dominico vel servitio ; ' f. 392, ' ante- cessor obiit seisitus ut de feodo in dominico vel in servitio.' 3 Testa de NeviUe, 71. 216 Tenure. [bk.. ii. vast liberty that men have enjoyed of creating new tenures and sub-tenures gives us wonderful complications : the obliga- tion of the tenement has to be kept distinct from the obligation of the tenant. The tenement may be burdened with military service, and yet as between lord and tenant, the lord and not the tenant may be bound to do it : all the same the land itself is burdened with the duty and the lord's overlord may have his remedy against the land. Obligations To take a simple case : — the king has enfeoffed A to hold by teni^t and military service ; A can now proceed to enfeoff B, (whether he °* '^^ . can do so without ,the king's leave is a question which we post- pone) and may enfeoff B by some quite other service; B for example is to pay to -4 a money rent. Now as regards the king, the land is burdened with and owes the military service ; the king can enforce the service by distraining the land for its performance, that is, by seizing any chattels that are found on it, which chattels will probably belong to B, or (at least in some cases) by seizing the land itself But A and B on the occasion of the feoffment, though they can not destroy the king's right or free the land from the military service, may none the less as between themselves settle the incidence of that service ; A may agree that he will do it, or the bargain may be that B is to do it, besides paying his money rent to A. The terminology of Bracton's day and of yet earlier times neatly expresses the distinction between the service which the tenant owes to his immediate lord by reason of the bargain which exists between them, and the service which was incumbent on the tenement intrinsec whilst it was in the lord's hand. The former is intrinsec service, and orin- ^j^^ latter forinsec service ; the former is the service which is created by, which (as it were) arises within, the bargain between the two persons, A and B, whose rights and duties we are discussing; the latter arises outside that bargain, is 'foreign' to that bargain ; nothing that the bargainers do will shift it from the land, though as between themselves they can decide about its incidence. Suppose that A has undertaken to discharge this burden, then if the king attacks the land in jB's hand, B will have a remedy against A ; there is a special form of action by which such remedy is sought, the action of mesne {breve de medio), very common in the thirteenth century; A who is mesne (medius) between the king and B is bound to ' acquit ' B of this ' forinsec service,' to hold him harmless against sec service. CH. I. § 1.] Tenure in General. 217 the king's demands'. And then if B enfeoffs G, the problem will reappear in a more complicated shape ; some new service will perhaps be created ; for instance G, who is a parson, is to pray for the soul of B's ancestors; but there are two other services incumbent on the land, the rent that B owes to A, the military service that A owes to the king, and in one way or another those services must be provided for. As between them- selves, B and G can settle this matter by the terms of their bargain, but without prejudice to the rights of A, and of the king. It is no impossibility that D should hold in villeinage of G, who holds in free socage of the Abbot of B, who holds in frankalmoin of A, who holds by knight's service of the king^ Just as at the present day one and the same acre of land may be leasehold, copyhold and freehold — for there is no land with- out a freeholder — so in the past one and the same acre might be holden by many different tenures. It owed many and manifold services, the incidence of which as between its various lords and tenants had been settled by complicated bargaining^. 1 The writ, of mesne is not in trlanvill, but appears in very early Begisters ; Harvard Law Eeview, iii. 113, 115. In Henry III.'s day it was in eommon use. 2 Y. B. 33-5 Edw. I., p. 377. ' See Bracton's explanation of the term 'forinsee service,' f. 35-7. This term had been in common use even in Bichard's day ; see Fines, ed. Hunter, passim ; and may be found at a much older time. It seems constantly used as though it were equivalent, or almost equivalent, to ' royal service, ' ' military service,' ' scutage,' insomuch that to say of a man that he owes forinsee service is treated as almost the same as saying that his tenure is military, and therefore implies wardship and marriage; see Braotou's Note Book, pi. 33, 236, 288, 703, 795, 978, 1076, 1631; Y. B. 20-21 Edw. I., p. 133. Hence the notion put forward by Hale and supported by Hargrave (Co. Lit. 69 b, 74 a, notes) that forinsee service is so called because it is done in foreign parts. But this can hardly be trae ; the military tenants were constantly asserting that into foreign parts they were not bound to go (see below, p. 232). Besides, services which are not military are oooasionally called 'forinsee,' services due from socage tenements, e.g. suit of court, landgafol, churchscot; Beg. Malm., ii. 51, 'salvo forinseco servicio pertinente ad liberum socfcgium quantum ad unam virgatam terrae ' ; Ibid. 52, ' salto forinseco servieio pertinente ad unam virgatam terrae de Ubero sooagio ' ; Ibid. 69, ' et pro ohirchsote [sic] et omnibus aliis servioiis forinsecis.' And forinsee service is not necessarily due to the king; Whalley Couoher i. 21 : A'b tenant B has enfeoffed G; A releases to G 'omne forense servicium quod ad me pertinet' ; the service due from BtoA was forinsee as regards G. Thus the term is a relative one ; what is 'intrinsec ' between A and B is 'forinsee' as regards G. At the same time it must be confessed that this use of the word, which has not been found in France, implies a considerable degree of abstraction, and it seems possible that as a matter of historic fact it is due to the juristic treatment of a simpler arid more concrete notion. In 218 Tenure. y [bk. ii. ciassifica- Little more could at this moment b^' said of tenure in t'enm°is. general— an abstraction of a very high order. Efforts however have been made to classify the tenures, to bring the infinite modes of service under a few heads, and on the whole we may say that before the end of the twelfth century the great outlines which were to endure for long ages had been drawn; though neither in Glanvill, nor even in Bracton, do we find just that scheme of tenures which became final and classical. In par- ticular 'fee farm' and 'burgage' threaten to be coordinate with, not subordinate to, ' free socage' ; 'tenure by barony' is spoken of as something different from ' tenure by knight's service' ; and in the north there are such tenures as 'thegnage' and 'drengage' which are giving the lawyers a great deal of trouble. Still subject to some explanations which can be given hereafter, we may say that in Bracton's day tenures are classified thus : — they are either free or not free ; the free tenures are (1) frankalmoin, (2) military service, (3) serjeanty, (4) free socage. In this order we will speak of them*. § 2. Frankalmoin. Fi-aukal- -^^ the beginning of the thirteenth century a large and ever- increasing quantity of land was held by ecclesiastics, regular and secular, in right of their churches or religious houses by a tenure commonly known as frankalmoin, free alms, libera elemosina. The service' implied by this tenure was in the first place spiritual, as opposed to secular service, and in the second place it was an indefinite service. Such at least was the doc- mom. northern charters we sometimes read of the king's 'utware' just where we should expect to read of 'forinseo service.' In a charter temp. Hen. I., Whitby Cartulary, i. 30, we find 'ah omni equitatu et forensi servioio et consuetudine saeculari.' Perhaps at first ' outside service ' meant service done outside the tenement or outside the manor; but jurisprudence gave a new turn to the phrase and there is hardly room for doubt that Bracton's explanation {f. 36) gives us the law of his time: — 'forinsecum dici potest quia sit [coir. fit] et capitur foris sive extra servitium quod sit [coiT. fit] domino oapitali.' Observe that the tenant's 'dominus oapitalis' is his immediate lord. ' The passage in Glanvill most important in this context is, lib. ix. c. 4 where we read of 'barony,' 'knight's service,' 'serjeanty,' 'socage'; elsewhere ' burgage ' and ' frankalmoin ' appear ; ' frankmarriage ' will also demand atten- tion, but at a later stage of our work. CH. I. § 2.] Franhalmoin. 219 trine of later days\ We may take this latter characteristic first. At all events in later days^, if land was given to a church- man and there was a stipulation for some definite service albeit of a spiritual kind, for example a stipulation that the donee should sing a mass once a year or should distribute a certain sum of money among the poor, the tenure thus created was called, not frankalmoin, but tenure by divine service; the tenant might perhaps be compelled to swear fealty to his lord, and the performance of the service might be exacted by distress or by action in the king's courts ^ On the other hand, if the tenant held in frankalmoin, that is, if the terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee's prayers, then no fealty was due and only by ecclesiastical censures could the tenant be com- pelled to perform those good offices for the donor's soul that he had impliedly or expressly undertaken. Perhaps this dis- tinction was admitted during the later years of the period with which we are now dealing ; but we shall hereafter see that in this region of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual, would have been resented. The question is of no very great importance, because stipulations for definite spiritual services were very rare when compared with gifts in frankalmoin ^ Here, as in France, the word elemosina became a technical Meaning word, but of course it was not such originally. At iirst it would ° express rather the motive of the gift than a mode of tenure that the gift creates. And so in Domesday Book it is used in 1 But in 13 Edw. i (Fitz. Abr. Counterple de voucher, 118) it is said that frankalmoin is the highest and most certain of all services. ' Litt. sec. 133—8. " See the writ Cessavit de cantaria, Beg. Brev. Orig. 237 b, 238. * A few instances of such definite spiritual services may be found already in Domesday, e.g. ii. 133, 133 b, a tenant has to sing three masses. Gifts for the maintenance of lamps before particular altars and the Uke are not uncommon, and often they expressly say that the land is frankalmoin, e.g. Eeg. St Osmund i. 234 (1220 — 5), a gift of land to the church of Sarum in pure and perpetual alms to find a taper to bum before the relics on festivals. Sometimes it would have been difficult to draw the line between ' certain ' and ' uncertain ' services, as when land was given that its rents might be expended ' tam in reparanda ecclesia quam in maioribus necessariis ecclesiae,' Beg. St Osmund, i. 350. 220 Tenure. [bk. il. various senses and contexts. In some cases a gift has been made by the king ' in elemosina,' but the donee is to all appear- ance a layman ; in one case he is blind, in another maimed ; he holds by way of charity and very possibly his tenure is pre- carious. To hold land 'in charity' might well mean to hold during the giver's pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been made not merely in alms but 'in perpetual alms^' Then again in some parts of the country it is frequently noted that the parish priest has a few acres ' in elemosina' ; in one case we learn that the neighbours gave the church thirty acres in alms^ There are, however, other cases in which the term seems to bear a more technical sense; some religious house, English or French, holds a considerable quantity of land in alms ; we can hardly doubt that it enjoys a certain immunity from the ordinary burdens incumbent on landholders in general, including among such landholders the less favoured churches^ And so again in. the early charters the word seems to be gradually becoming a word of art ; sometimes we miss it where we should expect to find it, and instead get some other phrase capable of expressing a complete freedom from secular bulrdens*. In the twelfth 1 D. B. i. 293, ' In W. tenet quidam eeous unam bovatam in elemosina de rege'; iv. 466, ' Tenuit Edritius manous in elemosina de rege Edwardo.' In Dorsetshire, under the heading ' Terra Tainorum Regis ' (i. 84), we find ' Hanc terram dedit Eegina Dodoni in elemosina.' In Devonshire, under the like heading (118), we find 'Aluuard Mert tenet dim. virg.... Eegina dedit ei in elemosina.' In Hertfordshire (137 b) we read how a manor was held by two thegns, one of whom was the man of King Edward, the other was the man of Asgar ; they oould not sell ' quia semper iacuerunt in elemosina.' This would seem to mean that they held precariously. See the curious entry, ii. 5 b, which tells how Harold gave a hide to a certain priest of his, ' set hundret nescit si dedit liberae [sic] vel in elemosina'; seemingly the hundred did not know whether the priest's tenure was free or precarious. 2 D. B. ii. 24 b; ii. 189 b, the parish church holds sixty acres of free land 'elemosina plurimorum.' See the survey of Suffolk where the parish chm-oh generally holds some acres ' of free land ' in elemosina. 3 D. B. i. 25 b, ' Clepinges tenet Abbatia de Almanesches de Comite (Eogerio) in elemosina. ..se defendit pro xi. hidis....Iu eodem manerio tenet S. Marunus de Sais de Comite in elemosina xi. hidas ' ; i. 58, ' Episcopus Dunebnensis tenet de Rege Waltham in elemosina'; i. 166 b, 'Eoolesia de Cirecestre tenet de Eege duas hidas in elemosina et de Rege E. tenuit quietas ab omni consue- tudine.' * Thus when Henry I. makes gifts to the Abbey of Abingdon ' to the use of the alms of the said church,' we seem to get the term in a slightly different CH. I. § 2.] Frankalmoin. 221 century, the century of new monastic orders, of lavish endow- ments, of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning'. The notion that the tenant in frankalmoin holds his land Spiritual . 1 ■ 1 T T r. • • service. by a service done to ms lord seems to grow more definite m course of time as the general theory of tenure hardens and the church fails in its endeavour to assert a jurisdiction over disputes relating to land that has been given to God. The tenure thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion, at least on the continent, was a very old one. A document of the year 817 contains a list of fourteen monasteries which owe the emperor aids and military service (dona et militiam), of sixteen which owe aids but no military service, and of eighteen which owe neither aids nor military service, but only prayers^ In English charters it is common to find the good of the donor's soul and the souls of his kinsfolk, or of his lord, or of the king, mentioned as the motive for the gift ; the land is bestowed pro anima mea, pro salute animae meae. Sometimes the prayers of the donees are distinctly stipulated for, and occasionally they are definitely treated as services done in return for the land^ ; thus, for example, the donor obliges himself to warrant the gift 'in consideration of the said service of prayers*.' Not un- frequently, especially in the older charters, the donor along with sense from that which becomes usual ; he may well mean that the land is devoted to those pious works of the Abbey which belong to the almoner's department ; Hist. Abingd. ii. 65, 94. ' In comparatively late documents we may still find persons who are said to hold in frankalmoin but are not holding in right of any church. Thus in the Whalley Coucher, i. 43, William the clerk of Eccles gives land to his brother John his heirs and assigns, to hold in pure and perpetual alms of the donor and his heirs, rendering yearly a pound of incense to God and the church of Eccles. William's tenure may have been frankalmoin, but according to modem notions John's could not be. 2 Pertz, Leges, i. 223 ; VioUet, Histoire des institutions, i. 331. The trans- lation of dona by aids may be a little too definite. = Cart. Glouc. i. 197: 'habendum in liberam elemosinam...sine aliquo retinemento ad opus meum vel aliquorum heredum meorum nisi tantummodo orationes spiiituales perpetuas ' ; ibid. i. 199, 289, 335, ii. 10. Such phrases are common in the Whalley Coucher Book. * Cart. Glouc. i. 307 : 'Nos vero...praedictam terram...per praedictum servi- oium orationum warantizabimus.' The term ' consideration ' is of course rather too technical, but still the prayers seem regarded as having a certain juristic value. 222 Tenure. [bk. ii. the land gives his body for burial, by which is meant that the donees undertake the duty of burying him in their church' ; sometimes he stipulates that should he ever retire from the world, he shall be admitted to the favoured monastery, some- times he binds himself to choose no other place of retirement ; often it is said that the donees receive him into all the benefits of their prayers". Gifts to w^e have spoken as though gifts in frankalmoin were made the saints, to men, but according to the usual tenour of their terms they were made to God. As Bracton says, they were made prima et principaliter to God, and only secundario to the canons or monks or parsonsl A gift, for example, to Ramsey Abbey would take the form of a gift ' to God and St Benet of Ramsey and the Abbot Walter and the monks of St Benet,' or ' to God and the church of St Benet of Ramsey and the Abbot and his monks,' or simply ' to God and the church of St Benet of Ramsey,' or yet more briefly ' to God and St Benet*.' The fact that the land was given to God was made manifest by appropriate ceremonies; often the donor laid the charter of feoffment, or some knife or other symbol of possession upon the altar of the church**, some- times he 'abjured' the land and thus confirmed his gift by his oath^ Clauses denouncing excommunication and damnation against all who should disturb the donee's possession did not go out of use at the Norman Conquest, but may be found in charters of the twelfth century ^ nor was it uncommon for a great religious house to obtain a papal bull confirming gifts already made and thereafter to be made, and whatever might be the legal effect of such instruments, the moral effect must have 1 Litigations over the right to bury benelaotors may be found, e.g. Eegister of St Thomas, Dublin, p. 349, between the canons of St Thomas and the monks of Beotive about the body of Hugh de Lacy; also struggles for the bodies of dying men, e.g. between the monks of Abingdon and the canons of St Prideswide, Hist. Abingd. ii. 175. See also a charter of John de Lacy in the Whalley Coucher, i. 33 : ' Know ye that I have given and granted to the abbot and monks of Stanlaw after my death myself and my body to be buried.' ^ For an elaborate agreement about masses and other spiritual benefits see Newminster Cartulary, p. 120. " Bract, f. 12. * Cart. Eamsey, i. 159, 160, 255, 256. « See e.g. Cart. Glouo. i. 164, 205; ii. 74, 86, 97. * See e.g. Beg. St Osmund, i. 356 ; Chron. Melsa. i. 309. ' See e.g. Hist. Abingd. ii. 55 ; Whitby Cartulary, i. 200 ; Whalley Coucher, i. 17, 113. CH. I. § 2.J Frankalmoin. 223 been greats We are not entitled to treat these phrases which seem to make God a landowner as of no legal value. Bracton more than once founds arguments upon them^, and of course they very naturally suggest that land given in frankalmoin is utterly outside the sphere of merely human justice. In later days the feature of tenure in frankalmoin which Free aims . „ , . and form- attracts the notice of lawyers is a merely negative feature, see service. namely, the absence of any service that can be enforced by the secular courts. But here some distinctions must be drawn. The king might give land to a religious house ' in free, pure, and pei-petual alms,' and in that case not only would no secular service be due from the donee to the donor, but the land in the donee's hand would owe no secular service at all. But tenure in frankalmoin is by no means necessarily a tenure in chief of the crown ; indeed it would seem that the quantity of land held in chief of the crown by frankalmoin was never very large. It / will, of course, be understood that an ecclesiastical person might well hold lands, and hold them in right of his church, by other tenures. The ancient endowments of the bishops' sees and of the greaier and older abbies were from the Conqueror's reign onwards held by knight's service ; the bishop, the abbot, held a barony. Besides this we constantly iind religious houses taking lands in socage or in fee farm at rents and at substantial rents, and though a gift in frankalmoin might proceed from the king, it might well proceed, and probably more often did proceed, from a mesne lord. In this case the mere gift could not render the land free from all secular service; in the donor's hand it was burdened with such service, and so burdened it passed into the hands of the donee^. If the donee wished to get rid of the service altogether, he had to go to the donor's superior lords and ultimately to the king for charters of confirmation and release. But as between themselves, the donor and donee might arrange the incidence of this ' forinsec service ' as pleased them best. The words 'in free, pure, and perpetual alms' seem to have implied that the tenant was to owe no secular service to his lord ; but they did not necessarily imply that as between lord 1 See e.g. Bull of 1138, Hist. Evesham, 17-3 ; Bull of 1140, Oart. Eamsey, ii. 155 ; Bull of 1146, Hist. Abingd. ii. 191. 2 Bracton, f. 12,286 b. 3 Bracton, f. 27 b. 224 Tenure. [bk. ii. and tenant the lord was to do the forinsec service. And so we find the matter settled in various ways by various charters of donation : — sometimes it is expressly stipulated that the tenant is to do the forinsec service', sometimes the lord expressly burdens himselif with this^, often nothing is said, and apparently in such case the service falls on the lord. PureaJms. Another rule of interpretation appears, though somewhat dimly. In accordance with later books, we have spoken as though a gift in frankalmoin, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were 'free, pure, and perpetual alms,' and in Bracton's day much might occasionally turn on the use of the word ' pure^' Seemingly there was no contradiction between a gift in ' free and perpetual alms ' and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service had not been conceived as the most essential feature of tenure in frankalmoin ; and if we find, as well we may, that a donor sometimes stipulates for secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened*. Free alms """ The key to the problem is given by the Constitutions of riattical^' Clarendon (1164). 'If a dispute shall arise between a clerk ii^n^^*" and a layman, or between a layman and a clerk concerning any tenement which the clerk asserts to be ' elemosina,' and the layman asserts to be lay fee, it shall be determined by a recog- nition of twelve lawful men and the judgment of the chief ' Fines, ed. Hunter, i. 200 (3 John), 'Ala dedit et concessit in puram et per- petuam elemosinam Deo et eooleaiae S. Marie de B...totam partem suam...ita quod praedictus prior et successores sui faeient inde forinsecum servioium.' Cart. Glouc. i. 167, gift in frankalmoin, 'salvo tamen regali servicio'; ibid. 187, gift in frankalmoin saving the landgafol due to the king; ibid. 289, gift in free, pure and perpetual alms subject to a rent of pepper and to royal service. == Cart. Glouc. ii. 17, 30, 98. " Bracton, f. 27 b ; Note Book, pi. 21. * Eievaulx Cart. p. 29, gift by Bishop Hugh of Durham in free and perpetual alms at a rent of 60 shillings, payable to him and his successors ; ibid. pp. 80, 226, 249. Newminster Cart. p. 73, gift by Newminster Abbey to Hexham Priory in free, pure, and perpetual alms at a substantial rent. Bracton, f. 48, holds that in these cases the reservation being repugnant to the gift is of no eSeet. CH. I, § 2.] Frankalmoin. 225 justiciar, whether (utrum) the tenement belongs to ' elemosiha ' or belongs to lay fee. And if it be found that it belongs to ' elemosina,' then the plea shall go forward in the ecclesiastical court : but if it be lay fee, then in the king's court, or in case both litigants claim to hold of the same lord, then in the lord's court And in consequence of such a recognition, the person who is seised is not to lose bis seisin until it has been deraigned by the plea'.' Let us observe how large a concession to the church the great Henry is compelled to make, even before the murder of Becket has put him in the wrong. This is all that those ' avitae leges,' of which he talks so frequently, will give him, and he -claims no more. The clergy have established this principle : — All litigation concerning land held in almoin belongs of right to the ecclesiastical courts. All that the king insists on is this ; that if it be disputed whether the land be almoin or no, this preliminary question must be decided by an assize under the eye of his justiciar. Thus the assize Utrum is established. It is a preliminary, prejudicial pro- cedure ; it will not even serve to give the claimant a possession ad interim ; the possessor is to remain possessed ; it decides not the title to land, but the competence of courts. Here then we find the essence of ' almoin ' as understood in the middle of the twelfth century : — the land is subject to no jurisdiction save that of the tribunals of the church. Even to maintain his royal right to decide the preliminary question of competence, was no easy matter for Henry. Alexander III. freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the possessory right in English lands: he went further, he bade his delegates award possession even in a dispute between layman and layman, though afterwards he apologized for so doing. The ' avitae leges,' therefore, were far from conceding all that the clergy, all that the pope demanded ^. 1 Const. Clarend. o. 9. In the Gesta Abbatum, i. 114, tbe St Alban's chroni- cler gives an account of litigation in Stephen's reign in which something very like an Assisa Utrum takes place. See above p. 124. ^ See the very remarkable series of papal rescripts in the Eievaulx Cartulary, 189-197; see also c. 7, X. 4, 17, where the pope admits that he has gone too far in ordering his delegates to give possession in a dispute between laymen, which came into the eoolesia'stical courts in consectuence of a question having been raised about bastardy. See also in the Malmesbury Register, ii. 7, P, M. 15 226 Tenure. [bk. it. The Assize Utrum. Defeat of the eccle- siastical claims. They cmceded, however, much more than the church could permaijJBj^ keep. If as regards criminous clerks the Con- stituticHR? Clarendon are the high-water-mark of the claims of secul3,r«istice, as regards the title to lands they are the low- waterAntrk. In Normandy the procedure instituted by Henry, the Breve de Feqdo et Elemosina, which was the counterpart, and peAaps the model, of our own Assisa TJtrwn, seems to have maintained its preliminary character long after Henry's son had forfeited the duchy; its object was still to decide whether a dispute belonged to the ecclesiastical or to the tem- poral forum \ In England it gradually and silently changed its whole nature ; the Assisa Utrv/m or action Juris Utrum ^ became an ordinary proprietary action in the king's court, an action enabling the rectors of parochial churches to claim and obtain the lands of their churches : it became 'the parson's writ of rights' Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat*. The formal side of this process seems to have consisted in a gradual denial of the assize Utrum to the majority of the tenants in frankalmoin, a denial which was justified by the statement that they had other remedies for the recovery of their lands. If a bishop or an abbot thought himself entitled proeeedinga under letters of Innocent III. for the recovery from a layman of land improvidently alienated by an abbot. In the Gesta Abbatum, i. 159—162, there is a detailed account of litigation which took place early in Henry 11. 's reign between the Abbot of St Alban's and a layman touching the title to a wood; the abbot procured letters from the pope appointing judges delegate. ' Grand Coutumier, c. 117; Brunner, Entstehung der Sehwurgerichte 324-6. 2 The term Juris Utrum seems due to a mistake in the expansion of the compendium Jur'; it should be Jurata Utrum, in French Jure Utrum; see e.g. Y. B. 14-15 Edw. III. (ed. Pike), p. 47; and see Bracton, f. 287, where the technical distinction between an Assisa Utrum and a Jurata Utrum is ex- plained. 3 Britton, ii. 207. ■> According to Glanvill (xii. 25, xiii. 23, 24) the courts Christian are com- petent to decide an action for land between two clerks or between clerk and layman in case the person in possession is a clerk who holds in free alms. So late as 1206 an assize Utrum is brought by one monastic house against another, and on its appearing that the land is ahnoin the judgment is that the parties do go to court Christian and implead each other there ; Placit. Abbrev p 54 (Oxon). CH. I. § 2.] Frankalmoin. S27 to lands which were withholden from him, he might use the ordinary remedies competent to laymen, he might have recourse to a writ of right. But one class of tenants in frankalmoin was debarred from this remedy, namely, the rectors of parish churches. Bracton explains the matter thus: — When land is given to a religious house, though it be in the first place given to God and the church, it is given in the second place to the abbot and monks and their successors, or to the dean and canons and their successors; so also land may be given to a bishop and his successors ; if then a bishop or an abbot has occasion to sue for the land, he can plead that one of his prede- cessors was seised of it, just as a lay claimant might rely on the seisin of his ancestor ; but with the parish parson it is not so ; we do not make gifts to a parson and his successors ; we make them to the church, e.g. ' to God and the church of St Mary of Dale';' true, that if the parson be ejected from posses- sion, he may have an assize of novel disseisin, for he himself has been seised of a free tenement, but a proprietary (as opposed to a possessory) action he can not bring ; he can have no writ of right, for the land has not been given to a parson and his successors, it has been given to the church ; he can not therefore plead that his predecessor was seised and that on his predecessor's death the right of ownership passed to him ; thus the assize TJtrum is his only remedy of a proprietary kind ^. In another context it might be interesting to consider the mean- ing of this curious argument ; it belongs to the nascent law about ' corporations aggregate ' and ' corporations sole.' The members of a religious house can already be regarded as con- stituting an artificial person; the bishop also is regarded as bearing the ' persona ' of his predecessors — the vast temporal possessions of the bishops must have necessitated the forma- tion of some such idea at an ei^^^ime; but to the parish parson that idea has not yet been a^pied ; the theory rather is ' This remark seems fairly well-supported by the practice of conveyancers in Bracton's time; thus e.g. a donor gives land ' to God and St Mary and St Chad and the church of Eocbdale,' and contracts to warrant the land ' to God and the church of Eochdale,' saying nothing of the parson; Whalley Ooucher, i. 162. " Bracton, f. 286 b, 287. This may have been the reasoning which caused a denial of the assize to the parson when that parson was a monastery, a denial which an ordinance of 1234 overruled ; Bracton's Note Book, pi. 1117. 15—2 228 Tenure. [bk, ii. " that the parish church itself is the landowner and that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being ^ However our present point must be that legal argument takes this form — (1) No one can use the assize Utrum who has the ordinary proprietary remedies for the recovery of land ; (2) All or almost all the tenants in frankalmoin, except the rectors of parish churches, have these ordinary remedies ; (3) The assize Utrum is essentially the parson's remedy ; it is ' singulare bene- ficium/ introduced in favour of parsons 2. This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions of Clarendon, it was a pro- cedure that was to be employed as well when the claimant was a layman as when he was a clerk. But soon the doctrine of the courts began to fluctuate. Martin Pateshull at one time allowed the layman this action ; then he changed his opinion, on the ground that the layman had other remedies ; Bracton was for retracing this step, on the ground that trial by battle and the troublesome grand assize might thus be avoided'. One curious relic of the original meaning of this writ remained until 1285, when the Second Statute of Westminster gave an action to decide whether a piece of land was the elemosina of one church or of another church *. The assize had originally been a means of deciding disputes between clerks and laymen, or rather of sending such disputes to the competent courts temporal or spiritual, and the Constitutions of Clarendon con- tain a plain enough admission that if both parties agree that the land is elemosina, any dispute between them is no con- cern of the lay courts. Meaning of We have been speaking of the formal side of a legal change, moin in ^^^ must not allow this to conceal the grave importance of the thbteenth ™^**®J^s that were at stake. The argument that none but century. ' Bracton, f. 287 b. The parson has not only the assize of novel disseisin, but he may have a writ of entry founded on the seisin of his predecessor. This being so, the refusal to allow him a writ of right is already somewhat anomalous. But the writs of entry are new, and the law of the twelfth century (completely ignored by Bracton) was that the eoolesiastloal court was the tribunal competent to decide on the title to land held in frankalmoin. 2 Bracton, f. 286 b. ^ Bracton, f. 285 b ; Fleta, p. 332 ; Britton, ii. 207. * Stat. 13 Ed. I., c. 24, CH. I. § 2. J Frankalmoin. ■ 229 parochial rectors have need of the Utrum, the conversion of the Utrv/m from a preliminary procedure settling the competence of courts, into a proprietary action deciding, and deciding finally, a question of title to land, involves the assertion that all tenants in frankalmoin (except such rectors) can sue and be sued and ought to sue and be sued for lands in the temporal courts by the ordinary actions. And this, we may add, involves the assertion that they ought not to sue or be sued elsewhere. The ecclesiastical courts are not to meddle in any way with the title to land albeit held in frankalmoin. To prevent their so doing writs are in common use prohibiting both litigants and ecclesiastical judges from meddling with 'lay fee' {laicimi feodvmfi) in the courts Christian, and in Bracton's day it is firmly established that for this purpose land may be lay fee though it is held in free, pure, and perpetual alms \ The interference of the ecclesiastical courts with land has been hemmed within the narrowest limits. The contrast to ' lay fee ' is no longer (as in the Constitutions of Clarendon) elemosina, but conse- crated soil, the sites of churches and monasteries and their churchyards, to which, according to Bracton, may be added lands given to churches at the time of their dedication '. The royal court is zealous in maintaining its jurisdiction ; the plea rolls are covered with prohibitions ° directed against ecclesiasti- cal judges; and it is held that this is a matter affecting the king's crown and dignity — no contract, no oath to submit to the courts Christian will stay the issue of a prohibition *. But the very frequency of these prohibitions tells us that to a great part of the nation they were distasteful. As a matter of fact a 1 Braoton, f. 407 ; Braeton's Note Book, pi. 547, 1143. Compare the some- what similar distinction 'entre lieu saint et lieu religieus,' in Beaumauoir, vol. i. p. 163. 2 Ibid. Such lands constitute the church's dos or dower. See also f. 207 b. ■■* See Bracton's Note Book passim. The writ of prohibition is found in Glanvill, xii. 21, 22. It is found in the earliest Cbancery Registers. Bracton discusses its scope at great length, f. 402 fol. * In the twelfth century the donor sometimes expressly binds himself and his heirs to submit to the church courts in case he or they go against the gift ; see e.g. Eievaulx Cartulary, 33, 37, 39, 69, 159, 166. So in the Newminster Cartulary, 89, a man covenants to levy a fine and submits to the juris- diction of the archdeacon of Northumberland in case he fails to perform his covenant. For a similar obligation undertaken by a married woman, see Cart. Glouo. i. 304. As to such attempts to renounce the right to a prohibition, see Bracton's Note Book, pi. 678. 230 Tenure. [bk. ii. glance at any monastic annals of the twelfth century is likely to show us that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Just when Bracton was writing, Richard Marsh at the instance of Robert Grosseteste was formulating the claims of the clergy — ' He who does any injury to the frankalmoin of the church, which therefore is consecrated to God, commits sacrilege; for that it is res sacra, being dedicated to God, exempt from secular power, subject to the ecclesiastical forum and therefore to be protected by the laws of the church ^.' It is with such words as these in our minds that we ought to contemplate the history of frankalmoin. A gift in free and pure alms to God and his saints has meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws of the church and the courts of the church". § 3. Knight's Service. Military We now turn to military tenure and in the first place should warn ourselves not to expect an easy task. In some of our modem books military tenure has a definiteness and a stability which it never had elsewhere. An army is settled on the land, is as it were rooted in the land; the grades in 'the service' correspond to, and in fact are, the grades of landholdership ; the supreme landlord is commander-in-chief ; each of his immediate tenants is the general of an army corps; the regiments, squad- rons, companies, answer to honours or manors or knight's fees ; all is accurately defined ; each man knows his place, knows how many days he must fight and with what arms; this 'feudal system' is the military system of England from the Norman Conquest onwards throughout the middle ages ; by means of it our land is defended and our victories are won in Wales aad in Ireland, in Scotland and in France. — When however we look at the facts all this definiteness, all this stability, vanish. We see growth and decay : we see decay beginning before growth is at 1 Ann. Burton, p. 427. See also the protest of the bishops in 1257, Mat. Par. Chron. Maj. vi. 361. 2 Viollet, Histoire du droit civil, p. 702: 'la franohe aum6ue...un franc alleu ...tehappant £l toute juridiotion civile.' tenure. CH. I. § 3. J Knight's Service. 231 an end. Before there is much law about military tenure it has almost ceased to be military in any real sense. We must have regard to dates. Every one knows that the military tenure of Charles I.'s reign was in substance a very different thing from the military tenure of Edward I.'s ; but this again was a very different thing from the military tenure of Henry I.'s or even of Henry II.'s reign. Soon after the Conquest a process begins whereby the duty Growth of service in the army becomes rooted in the tenure of land, of military This goes on for a century ; but before it is finished, before the '®""'^®- system of knight's fees has been well ordered and arranged, the kings are already discovering that the force thus created is not what they want, or is not all that they want. It may serve to defend a border, to harry Wales or Scotland for a few weeks in the summer, but for continuous wars iu France it will not serve ; the king would rather have money ; he begins to take scutages. This, as we shall soon see, practically alters the whole nature of the institution. Another century goes by and scutage itself has become antiquated and unprofitable ; another, and scutage is no longer taken. Speaking roughly we may say that there is one century (1066 — 1166) in which the military tenures are really military, though as yet there is little law about them, that there is another century (1166 — 1266) during which these tenures still supply an army though chiefly by supplying the pay for an army ; and that when Edward I. is on the throne the military organization which we call feudal has already broken down and will no longer supply either soldiers or money save in very inadequate amounts. However, just while it is becoming little better than a misnomer to speak of military tenure, the law about military tenure is being evolved, but as a part rather of our private than of our public law. The tenant will really neither fight nor pay scutage, but there will be harsh and intricate law for him about the reliefs aad wardships and marriages that his lord can claim because the tenure is military. Thus in speaking of tenure by knight's service as it was before the days of Edward I. we have to speak not of a stable, but of a very unstable institution, and if of necessity we describe it in general terms, this should not be done without a prelimiaary protest that our generalities will be but approximately true. As to scutage, in the whole course of our history this impost was levied but some forty times and we can not be certain that 232 Tenure. [bk. il. the method of assessing and collecting it remained constant. An English lawyer turning to study the history of these matters should remember that if Littleton had cared to know much about them, he would have had to devote his time to antiquarian research'. Units of By far the greater part of England is held of the king by service. knight's Service (per servitiwm miUtare) : it is comparatively rare for the king's tenants in chief to hold by any of the other tenures. In order to understand this tenure we must form the conception of a unit of military service ; that unit seems to be the service of one knight or fully armed horseman {servitium unius militis) to be done to the king in his army for forty days in the year, if it be called for. In what wars such service must be done, we need not here determine ; nor would it be easy to do so, for from time to time the king and his barons have quarrelled about the extent of the obligation, and more than one great crisis of constitutional history has this for its cause. It is a question, we may say, which never receives any legal 1 The following list of scutages is compiled partly from the Red Book of the Exchequer partly from Stubbs, Const. Hist.: — Hennj II., 1156, pro exercitu Walliae (according to Swereford), (20s.) ; 1158, pro eodem exercitu WaUiae (2 marks); 1159, pro exercitu Tolosae (2 marks), usually reckoned the first real Bcutage; 1160, pro eodem exercitu (1 mark); 1168, aid for daughter's marriage (1 mark) ; 1172, pro exercitu Hiberniae (20s.) ; 1186, pro exercitu Galweyae (20s.) ; Richard I., 1190, pro exercitu Walliae (10s.); 1195, for the king's ransom (20s.); 1195, Normandy (20s.); 1196, Normandy (20s.); John, 1199, for the king's coronation (2 marks); 1201, Normandy (2 marks); 1202, Normandy (2 marks); 1203, Normandy (2 marks); 1204, Normandy (2 marks); 1205, Normandy (2 marks); 1206, Normandy (20s.) ; 1210, Ireland (2 marks); 1211, Wales (2 marks) ; 1211, Scotland (2 marks) ; 1215, Poitou (3 marks) ; Henry III., 1218, primum (2 marks); 1220, Bitham (10s.); 1228, Montgomery (2 marks); 1224, Bedford (2 marks) ; 1229, Kerry (2 marks) ; 1230, Britanny (3 marks) ; 1231, Poitou (3 marks); 1233, Elyeyn (20s.); 1235, aid for sistei-'s marriage (2 marks) ; 1242, Gascony (3 marks) ; 1245, aid for daughter's marriage (20s.) ; 1246, Gannoo (3 marks) ; 1253, aid for s/m's knighthood ; Edward I., 1277, Wales (40s.); 1282, Wales (40s.) ; 1300, Scotland '(40s.); 1303, Scotland (40s.); 1306, Scotland (40s.). Edward II. took one scutage, Edward III. one. This list includes some exactions that were rather aids than scutages, and several of the earliest items in it are of a very debatable nature; see Round, Engl. Hist. Rev. vi. 625. It is probable that much light will be thrown upon them and upon some of the problems with which we have to deal by the forthcoming edition of the Red Book, of which by the editor's kindness we have seen some sheets. The era of scutages is the half-century between 1190 and 1240. 2 Stubbs, Const. Hist. i. 563-4, ii. 132, 278. Already in 1198 the knights of the Abbot of St Edmund's asserted that they were not bound to serve outside CH. I. §'3.] Knight's Service. 233 Even the limit of forty days seems to have existed rather in The forty theory than in practice and its theoretic existence can hardly be °'^^' proved for England out of any authoritative document'. But we hear of some such limit in Norman, French and German law and attempts have been made to trace it back to the days of the Carlovingian emperors. From the Touraine or the Anjou of the thirteenth century we have a definite statement. ' The barons or men of the king are bound, if summoned, to follow him in his host and to serve at their own cost forty days and forty nights with as many knights as they owe him And if the king will keep them more than forty days and forty nights at their cost, they need not stay unless they will ; but if the king will keep them at his cost for the defence of the realm, they ought by rights to stay ; but if the king would take them out of the realm, they need not go unless they like, after they have done their forty days and forty nights^.' But the force of such a rule is feeble; when in 1226 the Count of Champagne appealed to it and threatened to quit the siege of Avignon, Louis VIII. swore that if he did so his lands should be ravaged'. In England when a baron or knight is enfeoffed, his charter, if he has one, says no more than that he is to hold by the service of one knight or of so many knights. When the king summons his tenants to war, he never says how long they are to serve. The exception to this rule is that they are told by John that they are to ■ serve for two quadragesims, eighty days, at the least^. Occasionally in the description of a military serjeanty, it is said that the serjeant is to serve for forty days, but to this are often added the words ' at his own cost ' and we are left to guess the realm; Jooelin of Brakelond (Camd. Soo.), 63. Hugh, bishop of Lincoln, had just made a. similar assertion; no service is due from the church of Lincoln outside the bounds of England; Vita Magna S. Hugonis, 249. See also the story of how the knights of Holderness refused to follow Prince Edward into Scotland, Chron. de Melsa, ii. 107. 1 What Littleton, sec. 95, has to say on this matter is hardly better than traditional antiquarianism. ' VioUet, Etablissements, ii. 95-6; iii. 31, 852-3. In Germany also the rule seems to have been that the vassal was only bound to find provisions for six weeks; after this he served at his lord's cost; Schroder, D. R. G., 499. As to Normandy see Grand Coutumier (ed. Gruchy, p. 66), o. 25, 3 Mat. Par. Chron. Maj. iii. 116. ^ Lords' Eeport on the dignity of a peer, App. i. p. 1. The summonses of the feudal array are collected in this Appendix. 234 ' Tenure. [bk. li. whether he is not bound to serve for a longer time at the king's or his lord's cost*. In 1198 Richard summoned a tenth part of the feudal force to Normandy; nine knights were to equip a tenth ; the Abbot of St Edmunds confessed to having forty knights ; he hired four knights (for his own tenants had denied that they were bound to serve in Normandy) and provided them with pay for forty days, namely with 36 marks ; but he was told by the king's ministers that the war might well endure for a year or more, and that unless he wished to go on paying the knights their wages, he had better make fine with the king ; so he made fine for £1001 In 1277 the knights of St Albans served in a Welsh campaign for eight weeks; during the first forty days they served at their own cost ; afterwards the king paid them wages'. No really serious war could be carried on by a force which would dissipate itself at the end of forty days, and it seems highly probable that the king could and did demand longer service, and was within his right in sp doing, if he tendered wages, or if, as was sometimes the case, he called out but a fractional part of the feudal force'- We have to remember that the old obligation of every man to bear arms, at least in defensive warfare, was never — not even in France — completely merged in, or obliterated by, the feudal obligation °- Just when there seems a chance that the feudal obligation may become strictly defined by the operation of the law courts, the king is beginning to look to other quarters for a supply of soldiers, to insist that all men shall be armed, to compel men of substance to become knights even though they do not hold by military tenure, to issue conimissions of array. Knight's But these units of military service, however indeterminate they may be, have become, if we may so speak, territorialized. A certain definite piece of land is a knight's fee {/eodwm militis); another tract is conceived as made up of five or ten knight's 1 Testa de Neville, e.g. 146-7. ^ Chron. Jooelini de Brakelond (Camden Soc), 63. » Gesta Abbatum, i. 435. ^ In 12X2 John gives orders for the payment at his cost of the knights in his service, from the time v?hen the period shall have elapsed during which they are bound to serve at their own cost; Eot. CI. i. 117. « As to France, see Viollet, ^tablissements, ii. 93 j iii. 350. As to the ' retrobannus Normanniae ' see a charter granted by John to the Abp. of Rouen, Eot. Cart. 69, and Grand Coutumier, c, 25 (ed. Gruohy, p. 66). fees. CH. I. § 3.J Knight's Service. 235 fees, another is half, or a quarter, or a fortieth part of a knight's fee, or, to use the current phrase, it is the fee of half, or a quarter, or a fortieth part of one knight (feodum quadragesimae partis unius militisy. The appearance of small fractional parts of a knight's fee could hardly be explained, were it not that the king has been in the habit of taking money in lieu of military service, of taking scutage or escuage (scutagium), a sum of so much money per knight's fee. Without reference to this we might indeed understand the existence of halves of knight's fees, for practice has sanctioned the equation duo servientes = unus miles, two Serjeants will be accepted in lieu of one knight^ ; but a fortieth part of the service of one knight would be unin- telligible, were it not that from time to time the service of one knight can be expressed in terms of money. Already in Henry II.'s reign we hear of the twelfth, the twenty-fourth, part of a knight's fee' ; in John's reign of the fortieth*, and we soon hear of single acres which owe a definite quantum of military service, or rather of the scutage which is exacted in place of such service. To represent to ourselves the meaning and effect of this Varying apportionment of military service is no easy matter. In the ^fg^t's first place we have to observe that the term ' knight's fee ' *®^^- does not imply any particular acreage of land. The knight's fee is no unvarying areal unit; some fees are much larger than others. This truth has long been acknowledged and indeed is patent". Even in the same county we may find a hide of land reckoned as a half, a third, a fourth, a fifth, and a sixth of a knight's fee'; in the north of England one baron holds sixteen carucates by the service of ten knights, while in another barony the single knight's fee has as many as fourteen caru- cates'. The fees held of the Abbot of Peterborough were extremely small; in some cases he seems to have got a full 1 The Norman term ' feodum loricae,' 'fief de haubert,' oocurs bat rarely in England, still it may be found; the Abbot of Tavistock holds fifteen and a half fees 'en fe de haubergh'; Eot. Huud. i. 81. Of. Coronation Charter of Hen. I. 0. 11, 'Milites qui per lorioas terras suaa deserviunt.' It is also common to speak of the knight's fee as a ' scutum,' particularly in reference to taxation. 2 See the muster rolls of Edw. I. ; Pari. Writs, i. 197, 228. ' Liber Niger, 224, 325. " Hunter, Fines, i. 15. s'Co. Lit. 69 a, 69 b (Hale's note); Stubbs, Const. Hist. i. 287; Bound, Eng. Hist. Eev. vii. 12. 6 Testa de Neville, 63-4. ' Lib. Nig. 273-4, 323. 236 Tenure. [bk. ii. knight's service from a single hide or even less ' ; on the othfer hand a fee of twenty- eight carucates may be found ^, and of Lancashire it is stated in a general way that in this county twenty-four carucates go to the knight's fee'. In one case, perhaps in other cases, the law had made some effort to redress this disparity ; the fees of the honour of Mortain were treated as notoriously small ; three of them were reckoned to owe as much service as was owed by two ordinary fees*. It is con- ceivable that at times a vague theory prevailed according to which twenty librates of land or thereabouts, that is lands to the annual value of £20, would be the proper provision for a knight ; but even this is hardly proved ^ Nature of Another and a great difficulty arises when we ask the tionment. question, what was the effect of this apportionment and in particular what persons did it bind ? Modern lawyers will be familiar with such questions, familiar with the notion that an apportionment of a burden on land may be effectual among certain persons, ineffectual as regards others. Let us suppose that A owns land which is subject to a rent-charge of £100 in favour of M and a land-tax of £10 per annum ; he sells certain acres to X; A and X settle as between themselves how the burdens shall be borne ; they agree that each shall pay a half, or perhaps one of them consents to accept the Whole burden. Now, allowing that this is an effectual agreement between them, we still have the question whether it can in any way affect the rights of M or of the king, who have hitherto been able to treat the whole land as subject to the whole rent-charge and the whole tax. It will not therefore surprise us if we find that the apportionment of military service was no absolute apportionment binding on all the persons concerned in its performance, but only an apportionment that held good as between certain of those persons. The appor- We may begin by considering the matter as one between the between king and his military tenants in chief We have good reason andhS^ to believe that the Conqueror when he enfeoffed his followers cMef^''" with tracts of forfeited land defined the number of knights 1 Chron. Petroburg, 169. ' Kirkby's Inquest for Yorkshire (Surtees Soo.) 196-7. 3 Testa de Neville, 408. * Madox, Exoh. i. 649. " Stubbs, Const. Hist. i. 288, and Bound, Engl. Hist. Bev. vii. 12, seem inclined to accept this theory. CH. I. § 3.] Knight's Service. 237 with which they were to supply him, and also that he defined the number of knights that were to be found for him by the prelates, by the cathedral and monastic churches whose lands had not been forfeited. It would not be true to say that in this way the whole of England was as between the king and his immediate tenants cut up into knights' fees. From the Conquest onwards he had immediate tenants who held of him by frankalmoin, by serjeanty, in socage; still in this manner a very large part of England was brought within the scope of military contracts or what could be regarded as such. How definite these contracts were we can not say, for to all seeming they were not expressed in writing. The only documentary evidence that the great lord of the Conqueror's day could have produced by way of title-deed, was, in all probability, some brief writ which commanded the royal officers to put him in seisin of certain lands and said nothing about the tenure by which he vvas to hold them. And again in the case of the churches, if we speak of a contract, we are hardly using the right word ; it was in the king's power to dictate terms and he dictated them. Whether in so doing he paid much or any regard to the old English law and the ancient land-books, is a question not easily to be decided, for we know but very little of the legal constitution of Harold's array. The result was in some instances an apparently capricious one ; the relative wealth of the abbeys of Peterborough, St Edmunds, St Albans and Ramsey can not have been expressed by the figures 60 : 40 : 6 : 4, which represented their fighting strength in the twelfth century; St Albans may have profited by a charter of king Offa at which modern diplomatists have looked ask- ance ^. But, at any rate as regards the forfeited lands of the English nobles, William had a free hand ; he could stipulate for so many units of military service from this count and so many from that baron. Apparently he portioned out these units in fives and tens. The number of knights for which a great baron is answerable in the twelfth century is generally some multiple of five, such as twenty, or fifty. The total number of knights to which the king was entitled has been extravagantly overrated. It was certainly not 60,000, nor was it 82,000; we may doubt whether it exceeded 5,000. The 1 Mat. Par. Chron. Maj. vi. 1; Haddan and Stubbs, Councils, iii. 470, 238 Tenure. [bk. ii. whole feudal array of England would in our eyes have been but a handful of warriors. He was a powerful baron who owed as many as sixty knights. We are not here arguing that William introduced a kind of tenure that was very new in England, such an argument would be out of place at this stage of our work ; but there seems to be no room for doubt that the actual scheme of apportionment which we find existing in the twelfth and later centuries, the scheme which as between king and tenant in chief makes this particular tract of land a fee of twenty or of thirty knights, is, except in exceptional cases, the work of the Conqueror ^. HonQura At any r^te in Henry II.'s day the allotment of military baronies, service upon the lands of the tenants in chief may be regarded as complete. It is already settled that this tenant in chief owes the king the service of one knight, while another owes the service of twenty knights. Historians have often observed that the tenants in chief of the Norman king, even his military tenants in chief, form a very miscellaneous body, and this is of much importance in our constitutional history; a separation between the greater and the lesser tenants has to be effected in course of time, and the king has thus a great power of defining what comes to be the 'estate' of the baronage. In Henry II.'s day the king had many tenants each of whom held of him but one knight's fee, or but two or three knights' fees. On the other hand there were great nobles each of whom had many knights' fees ; a few had fifty fees and upwards. Now to describe the wide lands held of the king by one of his great tenants in chief, the terms honour and barony were used. Between these two terms we can draw no hard line ; honour seems to be generally reserved for the very largest complexes of land, and perhaps we may say that every honour was deemed a barony, while not every barony was usually called an honour; but this seems a matter settled by fashion rather than by law ; for instance, it is usual to give the name barony, not honour, to the lands which a bishop holds by military service, though some ' This we regard as having been proved by Mr Bound's convincing papers in Eng. Hist. Eev. vols. vl. vii. Sometimes when land came to the king by way of escheat and was again granted out, new terms would be imposed on the new tenant; but in the main the settlement made in the Conqueror's day was a very permanent one. CH. I. § 3.] Knight's Service. 239 of these baronies were very large ^ To mark the inferior limit of the honours and baronies is not easy. We can not say that any particular number of knights' fees was either necessary or sufficient to constitute a barony ; in particular we can not accept the theory current in after times, that a barony contains thirteen knights' fees and a third, that a barony is to a knight's fee as a mark is to a shilling^. This equation seems to have been obtained not by an inductive process but by a deduction, which started with the rule that while the relief paid for a single knight's fee was a hundred shillings, that paid for a barony was a hundred marks. But neither can we make the facts square with this theory, nor as will be seen below can we treat the rule about reliefs as being so ancient as the con- stitution of baronies'. Nor must we think of the barony or honour as surrounded by a ring-fence; fragments of it will often lie scattered about in various counties, though there was some castle or some manor which was accounted its ' head.' We find it said of a man not only that" he holds a barony The barony (tenet baroniam) but that he holds by barony (tenet per ha- °g ^™°™ roniam). This phrase will deserve discussion hereafter ; for the complex of ... . knight's present it is only necessary to notice that each military tenant fees. in chief of the king, whether he has a barony or no, is deemed to owe the service of a certain number of knights. That number may be large or small. Let us suppose that in a given case it is fifty. Then in a sense this tenant may be said to hold fifty knights' fees. But all the land, at least if all of it be held by one title, and every part of it, is answerable to the king for the fifty knights. This tenant may enfeoff some fifty knights, making each of them liable to serve in the army ; he may enfeoff more, giving each feoffee but a fractional part of a fee, that is to say, making him answerable for but a fractional part of one knight's service; he may enfeoff fewer, making each of them answerable for the service of several knights; he may retain much land in his own hand, and look to hiring 1 The use of the term honor to signify none but the large estates can not be traced back very far. But it seems to have borne this sense early in the twelfth century; Leg. Hen. Prim. 55, § 1, where honour is contrasted with manor. 2 Selden, Titles of Honour, Pt. II., cap. v. sec. 26. 8 The oldest versions of the Charter make the relief for the barony, not a hundred marks, but a hundred pounds, so that were the argument sound, the barony should contain twenty tees. 240 Tenure. [bk. ii. knights when they are wanted. But as between the king and himself he has fifty knights' fees; he is answerable, and the land that he holds is answerable, for the production of fifty. Every acre in the honour of Gloucester was liable to the king for the service of some two hundred and odd knights. If the Earl of Gloucester makes default in providing the due number of knights, the king may distrain throughout the honour, or seize the honour into his hands. The exact nature of the power which a lord had of exacting service due to him from a tenement, need not be here considered ; but the main prin- ciple, which runs through the whole law on this subject, is, that the service due from the tenant is due also from the tenement, and can be enforced against the tenement into whosesoever hands it may come, regardless of any arrangement that the tenant may have made with his sub-tenants. This may be illustrated by the case of lands held in frankalmoin of a mesne lord, who himself holds by military service. In this ease something like an exception was occasionally admitted. The canons of Wroxton held land in frankalmoin of John Montacute ; the land was distrained for scutage ; but on the petition of the canons, the sheriff was bidden to cease from distraining, 'because the frankalmoin should not be distrained for scutages so long as John or his heirs have other lands in the county whence the scutages may be levied.' This is an exception and a carefully guarded exception ; if the tenant has given land in frankalmoin, the king will regard his pious intentions so far as to leave that land free from distress, pro- vided that there be other land whence he can get his service '. Thus, let us say that a baron holds twenty knights' fees, and has twenty knights each enfeoffed of a single fee ; the bound- aries between these fees in no way concern the king ; the whole tract of land must answer for twenty knights. An early example of this maybe given: — at some time before 1115 the Bishop of Hereford gave Little Hereford and Ullingswick to Walter of Gloucester for the service of two knights ; Walter gave Ullings- wick as a marriage portion for his daughter Maud free from all knight's service, and thus as between all persons claiming ' Madox, Exchequer, i. 670-1, where other cases of Henry III.'s reign are given; even John had observed this rule; Eot. Pat. 52, writ in favour of the Abbot of Stanlaw. CH. I. § 3.] Knight's Service. 241 under him the whole service of two knights was thrown onto Little Hereford. Thus really ' a knight's fee ' is a relative term; what is two knights' fees as between C and .5, is but part of two Relativity as between B and A ^ In the time of Henry II. when the knight's king was beginning to take stock of the amount of military ^^' service due to him, it was common for a tenant in chief to answer that he confessed the service of, for example, ten knights ; that he had five knights enfeoffed each of a knight's fee and that the other five he provided from his demesne ^. In one case, even at the end of the thirteenth century, a lord had not carved out his land into geographically distinct knights' fees. Somehow or another the abbot of Kamsey held his very broad lands by the service of but four knights, and we may therefore say that he had four knights' fees. But those four fees were not separated areas; he had a number of tenants owing him military service; they chose the four who on any particular occasion should actually do that service, and the others contributed to defray the expenses of the four by an assessment on the hide^ Thus the statement that a man holds a barony, or a parcel of knights' fees, of the king, tells us nothing as to the relationship between him and his tenants, and does not even tell us that he has any tenants at all. The military tenant in chief of the crown was as a general Duty of rule bound to go to the war in person. If he held by the service tary tenant of fifty knights, he was bound to appear, in person with forty- ""^'"®'- nine other knights. If he was too ill or too old to fight, he had to send not only a substitute but also au excused Women of course might send substitutes and so might ecclesiastics". The monks of St Edmunds thought it a dangerous precedent when ' Bound, Ancient Charters, p. 19. In 1237, jurors are asked by what services Agnes de WahuU holds a number of manors : — ' Servicium praediotorum maneri- orum nesoiunt separare, quia tota baronia de WahuUa respoudet integre dom. Begi pro xxx. militibus.' Braeton's Note Book, pi. 1182. 2 Liber Niger, passim, e.g. p. 253, 'Carta S. de Sealiers...Haeo est summa; X. milites habeo feodatos et servitium v. militum remanet super dominium meum. ' 2 Select Pleas in Manorial Courts, pp. 48-51 ; Monast, ii. 578. « See the Muster Bolls of 1277 and 1282 in Pari. Writs, vol. i., e.g. p. 202, ' Eobertus de Markham infirmus ut dioitur oftert servicium dimidii feodi militia in T. faciendum per W. de L. servientem.' ° This is often shown by the form of the summons ; the lay man is told to come with his service; women and ecclesiastics are bidden to send their service. P. M. 16 242 Tenure. [bk. ii. in 1193 Abbot Samson in person led his knights to the siege of Windsor'. How the nature of this obligation was affected by the imposition of scutage, is a question that we are not as yet prepared to discuss. Position -WTe must first examine the position of a tenant who holds by military knight's Service of a mesne lord, and we will begin with a simple case : A holds a mass of lands, it may be a barony or no, of the king in chief by the service of twenty knights, and B holds a particular portion of these lands of A by the service of one knight. Now in the first place B'b tenement as being part of A'b tenement owes to the king the service of twenty knights; it can be distrained by the king for the whole of that service. But as between A and B it owes only the service of one knight, and if the king distrains it for more, then A is bound to acquit B of this surplus service ; this obligation can be enforced by an action of ' mesne '^. On the other hand, B has undertaken to do for A the service of one knight. The nature of this obliga- tion demands a careful statement : — B is bound to A to do for A a certain -qiiantum of service in the king's army. We say that B is bound to A; B is not bound to the king ; the king it is true can distrain B's tenement ; but between B and the king there is no personal obligation'; the king can not by reason of tenure call upon B to fight ; if somehow or another A provides his twenty knights, it is not for the king to complain that B is not among them^ On the other hand the service that B is bound to do, is service in the king's army. Here we come upon a principle of great importance. According to the law of the king's court, no tenant is bound to fight in any army but the king's army, or in any quarrel but the king's quarrel. It might well have been otherwise ; we may see that it nearly was other- wise ; we may be fairly certain that in this respect the law was 1 Jooelin of Brakelond, (Camd. Soe.) 40. s See above, p. 216. * Thus, aooording to William Eufus, the knights of the archbishop of Canterbury appear in a Welsh war without proper armour ; Rufus makes this the ground of a charge against Anselm. Freeman, Will. Euf. i. 574, argues that even if the charge be true, it is not well founded in law ; but we can not agree with this opinion. Anselm may perhaps complain against his knights, but the king's complaint must be against Anselm. '' The king may compel B to do his service to il ; see e. g. Eot. CI. i. 117 (for Ealph Berners), 297 (for the abbot of Peterborough); but we must distinguish between what the king does as feudal lord and what he does as supreme judge and governor. CH. I. § 3. J Knight's Service. 243 no adequate expression of the current morality; still we can not say that the law of England ever demanded private warfare'. Indubitably the military tenant often conceived himself bound to fight for his lord in his lord's quarrel ; but the law enforced no such obligation. True, the obligation which it sanctioned was one that bound the man to the lord, and in a certain sense bound him to fight for his lord, — for it was at the lord's summons that the man came armed to the host, and if the lord had many knights, the man fought under the lord's banner; still he was only bound to fight in the king's army and the king's quarrel ; his service was due to his lord, still in a very real sense it was done for the king and only for the king : — in short all military service is regale servitiimn. It is the more necessary to lay stress upon this principle, for it had not prevailed in Normandy. The Norman baron had knights who were bound to serve him, and the service due from them to him had to be distinguished from the service that he was bound to find for the duke. The bishop of Coutances owed the duke the service of five knights, but eighteen knights were bound to serve the bishop. The honour of Montfort contained twenty knights' fees and a half, for the lord's service ; how many for the duke's service, the jurors could not say. The bishop of Bayeux had a hundred and nineteen knights' fees and a half; he was bound to send his ten best knights to serve the king of the French for forty days and to provide for their equipment he took twenty Rouen shillings from every fee; he was bound to find forty knights to serve the duke of Normandy for forty days, and for their equipment he took forty Eouen shillings from every fee ; but all the hundred and nineteen knights were bound to serve the bishop with arms and horses^ As a matter of fact however we sometimes find, even in Knight's England, that knight's service is due, at least that what is called to a lord knight's service, is due, to a lord who owes no knight's service n^e"^*^^ to the king, or that more knight's service is due to the lord than he owes to the king. One cause of this phenomenon may be that the lord is an ecclesiastic who has once held by military service, but has succeeded in getting his tenure changed to frankalmoin by the piety of the king or the negligence of the * We shall discuss this matter more fully in connexion with homage. ^ Infeudaciones militum in Eed Book of the Exchequer, f. 160-2 ; Bouquet xxiii, 698. 16—2 244 Tenure. [bk. ii king's officers. The chronicler of the Abbey of Meaux tells us how the abbot proved that he held all his lands in Yorkshire by frankalmoin and owed no military service, and then how he insisted that lands were held of him by military tenure and sold the wardships and marriages of his tenants'. Since he was not bound to find fighting men, his tenants were not bound to fight; still their tenure was not changed ; he was entitled to the profi- table casualties incident to knight's service. A similar result might be obtained by other means. The abbot of St Edmunds held his barony of the king by the service of forty knights; such at least was the abbot's view of the matter ; but he had military tenants who, according to his contention, owed him altogether the service of fifty-two knights ; or, to put it another way, fifty-two knights' fees were held of him, though as between him and the king his barony consisted of but fortyl The view taken by the knights was that the abbot was entitled to the service of but forty knights ; the fifty-two fees had to provide but forty warriors or the money equivalent for forty. But in Richard I.'s day Abbot Samson, according to the admiring Jocelin, gained his point by suing each of his military tenants in the king's court. Each of the fees that they held owed the full contribution to every scutage and aid, so that when a scutage of 20 shillings was imposed on the knight's fee, the abbot made a clear profit of £12'. So we find an abbot of Malmesbury making a feoffment and stipulating that the feoffee shall do the service of a fourth part of a knight's fee in the king's army, but shall pay aids and reliefs for half a knight's fee^. Bracton says distinctly that the tenant in socage can create a military sub-tenure. This however seems to mean merely that a feoffor may, if he chooses, stipulate for the payment of scutage even though the tenement owes none to the king ; in such case the scutage may seem to us but a rent capriciously assessed, but apparently Bracton would call the tenure military and it would 1 Chron. de Melsa, ii. 210, 222-3. 2 Lib. Nig. Scaec. 282. But in Henry II. 's day the view taken at the Exchequer was that the abbot owed aid for fifty-two fees. Madox, Bxoh. i. 572. See also in Testa de Neville, 415, the amusing letter in which the abbot in Henry III.'s reign professes an absolute ignorance as to the whereabouts of his fees : — ' In what vills they are distributed and in what place they lie, God knows.' ' Jocelin of Brakelond, (Camd. Soc.) 20, 48. * Eeg. Malmesb. i. 456. OH. I. § 3.] Knight's Service. 245 serve to give the lord the profitable rights of wardship and marriage^- The extraordinary licence which men enjoyed of creating new tenures gave birth to some wonderful complications. If B holds a knight's fee of A, then A can put X between him- self and B, so that B will hold of X and X oi A; but further, the service by which X will hold of A, need not be the service by which B has hitherto been holding of A and will now hold of X. In Richard's reign Henry de la Pomerai places William Briwere between himself and a number of tenants of his who altogether owe the service of 5^ knights or thereabouts ; but William is to hold of Henry by the service of one knight". To ' work out the equities ' arising between these various persons would be for us a very difficult task : still no good would come of our representing our subject-matter as simpler than really it is. Lastly, as already hinted, we must not suppose that the barons or even the prelates of the Norman reigns were always thinking merely of the king's rights when they surrounded themselves with enfeoffed knights. They also had their enemies and among those enemies might be the king. Still the only military service demanded by anything that we dare call English law, was service in the king's host. It would further seem, that Henry II., not without some success, endeavoured to deduce from this principle the conclusion that if a tenant in chief enfeoffed more knights than he owed to the king, he thereby increased the amount of the service that the king could demand from him. Such a tenant in chief had, we may say, been making evidence against himself — this was the opinion of his royal Jord'. The practice of taking scutages must have introduced into Scutage. the system a new element of precision and have occasioned a downward spread of the tenure that was called military. The extent of the obligation could now be expressed in terms of pounds, shillings and pence; and tenants who were not really expected to fight might be bound to pay scutage. On the other hand the history of scutage is full of the most perplexing diffi- culties. Before approaching these — and we have little hope of solving all of them — we will once more call to mind the fact that scutage is an impost of an extremely occasional kind, that there never were more than forty scutages or thereabouts. 1 Bract, f. 36. ^ Fines (ed. Hunter), ii. 51. ' Bound, Eng. Hist. Eev. vi. 429. 246 Tenure. [bk. il. Nature of We are wont to think of scutage as of a tax introduced by Henry II. in the year 1159, a tax imposed in the first instance on the military tenants in chief by way of commutation for personal service, a tax which they in their turn might collect from their sub-tenants. But it seems extremely probable that at a much earlier date, payments in lieu of military service were making their appearance, at all events in what we may call the outer circles of the feudal system'. In no other way can we explain the existence, within a very few years after 1159, of small aliquot parts of knights' fees. When it is said that a man holds the twentieth part of a fee, this can not mean that he is bound to serve for two days in the army ; it must mean that he and others are bound to find a warrior who will serve for forty days, and that some or all of them will really discharge their duty by money payments. We read too in very ancient docu- ments of payments for the provision of knights'" and of an auosilium exercitus, the aid for a military expedition ^ In Normandy the equivalent for our scutage is generally known as the auxilium exercitus*. In England the two terms seem in course of time to have acquired different meanings ; the lord ex- acted a scutage from his military, his nominally military tenants, while he took an ' army aid ' from such of his tenants as were not military even in "name^ But what we may call the natural development of a system of commutation and subscription between tenants in the outer circles of feudalism, was at once hastened and perplexed by a movement having its origin in the centre of the system, which thence spread outwards. The king began to take scutages in order that he might have money for the payment of mercenary troops. We need not here speak of what may be called the constitutional side of the matter, of the clause in the charter of 1215, which provided that no scutage should be levied without the common counsel of the realm, of the omission of that clause from the charter of 1216, of the sanction given by ' Bound, Eng. Hist. Eev. vi. 629. '' Charter of Abbot Faritius, Hist. Abingd. ii. 135. ' Eamsey Cart. i. 147; see also Henry II. 's Canterbury charter, Monast. i. 105. * Gr. Gout. (ed. Gruohy) o. 25, where the auxilium exercitus seems the equivalent of scutage. In some Norman documents it appears as one of the three aids, along with those for knighting the son and marrying the daughter ; Assisiae Normaniae, Warnkonig ii., 58; Tris anoien ooutmnier (Tardif) p. 39. » See Eot. 01. i. 570-1. Of these aids we shall speak in another section. OH. I. § 3.j Knight's Service. 247 the charter of 1217 to the practice, whatever it was, of Henry II.'s day, of the manner in which at a later time scutages were granted to the king'; but we have still before us several problems that have not been solved. In what, if any, sense is it correct to say that the military Scutage service of the tenants in chief was commuted into scutage ? the king The king's ban goes forth summoning the host to a cahipaign. t"„a*^® It says no word of scutage. Can the baron who owes twenty ™ •'''ief. knights sit at home and say, ' I will not go to the war ; and if I do not go, no worse can befall me than that I shall have to pay scutage for my twenty fees, and this indeed will be no heavy burden, for I shall be entitled to take a scutage from the knights whom I have enfeofifed' — can the baron say this ? Even if he can, we most notice that his self-interested calculations involve one unknown quantity. It may be that on some occasions the king really did give the baron an option between leading his knights to battle and paying some fixed sum. But such was not the ordinary course at all events in the thirteenth century. The rate at which the scutage was to be levied was not determined until after the defaulters had committed their defaults and the campaign was over ; the baron therefore who stayed at home did not know whether he would have to pay twenty marks, or twenty pounds, or forty pounds. But as a matter of fact, we find that in Henry III.'s day and Edward I.'s the tenant in chief who does not obey the summons has to pay far more than the scutage ; he has to pay a heavy fine. No option has been given him ; he has been disobedient ; in strictness of law he has probably forfeited his land ; he must make the best terms that he can with the king. Thus in respect of the campaign of 1230, a scutage of three marks (£2) was imposed upon the knight's fee ; but the abbot of Evesham ' had to pay for his 4^ fees, not £9, but £20 ; the abbot of Pershore for his 2 fees, not £4, but £10, the abbot of West- minster for his 15 fees, not 45 marks, but 100 marks^ In Edwardl /s day the fine for default is an utterly different thing from the scutage ; in 1304 he announces that he will take but moderate fines from ecclesiastics and women, if they prefer to pay money rather than send warriors'. We hear of such fines 1 It will be sufficient here to refer generally to Stubbs, Const. Hist. 2 Madox, Exchequer, i. 660. 2 See the writ in Lords' Eeport, iii. 165. 248 ^ Tenure. [bk. il. as £20 on the fee when the scutage is but £2 on the fee'. Furthermore it seems evident that if an option had been given between personal service and scutage, every one would have preferred the latter and the king would have been a great loser. Perhaps it is not absolutely impossible that Henry II. when he took two marks by way of scutage from each fee, took a sum which would pay a knight for forty days ; in other words that he could hire knights for eightpence a day^ But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised. In 1198 the abbot of St Edmunds hired knights for Normandy at the rate of three shillings a day°. In 1257 the abbot of St Albans put into the field an equivalent for his due contingent of six knights, by hiring two knights and eight esquires, and this cost him hard upon a hundred marks; while as between his various tenants the rule seems to have been that a knight, who was bound to serve, required two shillings a day for his expenses^ At about the same date the knights of Ramsey received four shillings a day from their fellow tenants ^ We may be sure that the king did not take from the defaulting baron less than the market ^^alue of his military service. The tenant Thus SO soon as our records become abundant it seems plain in cnief's -i-pi • -i • t ^ • service that the tenant m chief has no option between providing his discharged proper contingent of armed men and paying a scutage. The by scutage ^j^jy choice that is left to him is that between obeying the king's call and bearing whatever fine the barons of the Exchequer may inflict upon him for his disobedience. There- fore it seems untrue to say that as between him and the king there is any ' commutation of military service,' and indeed for a moment we may fail to see that the king has any interest in a scutage. If he holds himself strictly bound by principles that are purely feudal, the scutage should be nothing to him. From his immediate tenant he will get either military service or a heavy fine, and we may think that the rate of scutage will only determine the amount that can be extracted from the under- ' Gesta Abbatum, ii. 94. ' Eound, Eng. Hist. Bev. vi. 631. ' Jocelin, (Camd. Soo.) 63. < Mat. Par. Chron. Maj. vi. 374, 438. " Select Pleas in Manorial Courts, (Selden Soo.) 60-2. CH. I. § 3.] Knight's Service. 249 tenants by lords who have done their service or paid their fines. But this is not so. We must speak with great diffi- dence about this matter, for it has never yet been thoroughly examined, and we are by no means sure that all scutages were collected on the same principle. But from the first the king seems to have asserted his right to collect a scutage from the actual ' tenant in demesne ' who holds his land by knight's service. There are two conflicting elements in the impost ; it is in part the equivalent for a feudal, a tenurial service ; it is in part a royal tax. The king will regard it now as the one, and now as the other, as suits him best. He refuses to be a mere lord of lords; he is also a king of subjects. The undertenant of a mesne lord, if he owes military service, owes a service that is to be done for the king ; the king will, if this seems profitable, deal directly with him and excuse him from service on his paying money. And so in the thirteenth century the king, while he is exacting military service or fines from his tenants in chief, will also collect scutage from their tenants, from the persons whom he finds in the possession of acres that owe military service. Theoretically he is not entitled to be paid for the same thing twice over. If a baron has either fulfilled his contract by producing the requisite number of knights, or has compounded for his breach of contract, it is he and not the king who ought to receive any scutage that is to be levied from his tenants ; in the one case he ought to get a scutage out of any military tenants of his who have disobeyed his call to arms, in the other all his military tenants will seemingly have to pay, though he has not given them a chance of going to the war in person. That this ought to be so, seems to be admitted. Such a baron, having proved that he fulfilled his contract, or that he has compounded for his breach thereof, will have a right to a royal writ de scutagio habendo, whereby the sheriff will be ordered to cause him to have the scutage due from his tenants. Still before he can get his scutage, he has to obtain something that the king is apt to treat as a favour. Meanwhile the sheriffs will be taking scutage for the king's use from all who are in occupation of lands on which military service is incumbent, and leaving the various persons who are interested in those lands to settle the ultimate incidence of the burden as best they may. What comes into the king's hands generally stays there. But further, in Henry III.'s time the barons, 250 Tenure. [bk. il. assuming to act on behalf of the whole community, will on occasion grant to the king a scutage in respect of some military expedition that has taken place, and the meaning of this in some instances seems to be that, in response to the king's urgent demands, they make over to him the right to collect and to keep the scutages due from their undertenants, scutages which the feudal principle would have brought into their own coffers^ A national tax is imposed which the undertenants have to pay to the king. Much will remain obscure until the Exchequer rolls have been carefully analyzed, but this at least seems clear that the tenant in chief's duty of providing an armed force is not commuted into a duty of paying scutage ^ The We must now turn to a simple case and ask a simple ques- mihtary ^^^^^^ What was the duty of a man who held by knight's service tenants, of g, mesne lord ? We will suppose him to hold a single knight's fee. In the days before scutage his duty probably was to serve in person if summoned by his lord to the king's host ; only with a good excuse might he send a substitute"; but women and ecclesiastics would do their service by able-bodied representa- tives. Failure to perform this duty would be punished by a for- feiture of the tenement *. But the practice of taking scutages seems to have set up a change, and how far that change went, it is hard to decide. The knights began to allege that they were not bound to serve, but were only bound to pay a scutage, and only to pay a scutage when their lords had obtained from the king permission to levy it I It would further seem that many ^ See in particular the writ of 27 Hen. III. in Madox, Exchequer, i. 681. 2 Eobert of Torigny (ed. Hewlett) p. 202, in the classical passage which describes the scutage of 1159 says of the king that ' nolens vexare agrarioa milites, nee burgensium nee rustioorum multitudinem ' he took a sum of money from each knight's fee, and, this done, ' capitales baroues suos cum paucis secum duxit, solidarios vero milites innumeros.' The king does not give his capitales barones an option between going to the war and paying scutage, but he absolves from the duty of personal attendance their undertenants, many of whom, though in name tenants by military service, are mere yeomen {milites agrarii, burgenses, rustici,) and instead he takes a scutage. 3 To the contrary Littleton, see. 96, relying on Y. B. 7 Edw. III. f. 29 (Trin. pi. 23). But Littleton knew nothing of knight's service as a reality. See Magna Carta, 1215, c. 29. * Hist. Abingd. ii. 128 (temp. Hen. I.) an Abingdon knight fails to do service ; ' unde cum lege patriae deoretum prooessisset ipsum exsortem terrae merito debere fieri etc. ' " Already in 1198 the knights of St Edmunds profess themselves willing CH. I. § 3.] Knight's Service. 251 of them made good this assertion by steady perseverance. The lords were often compelled to hire soldiers because their knights — their knights so called, for many a tenant by knight's service was in habit but a yeoman — would not fight. It would even seem that the tenants as a body got the better in the struggle ; they established the rule that if they did not choose to serve, no worse could happen to them, than to be compelled to pay a scutage at the rate fixed by royal decree, a sum much less than they would have spent had they hired substitutes to fill their places. In short ' tenure by knight's service ' of Tenm-e by a mesne lord, becomes first in fact, and then in law, ' tenure by escuage". The stages of this process we can not trace distinctly, but it was closely connected with the gradual decline and fall of the feudal courts. The lord who kept an efficient court of and for his military tenants might in early days enforce a forfeiture of the tenement for default of service ; but the king's court seems to have given him little or no assistance and by degrees the remedies afforded by the royal tribunal became the standard of English law ^- The process must have to pay scutage, but they will not serve in Normandy ; Jooelin of Brakelond, 63. Hear a groan from tbe Abbey of Evesiiam: — 'Hie notantur milites et liberi tenentes de Abbatia de Evesham, multi iniuste fefati, pauci vero iuste. Isti nullum servitium faciunt ecclesiae nisi servitium Begis et hoe tepide.' (Quoted by Wrottesley, Burton Cartulary, p. 2.) ' In Normandy before the end of the thirteenth century the knights' fees had become divisible into two classes ; ' Quaedam feoda loricae servitium exer- citus debent dominis quod debetur Prineipi ; quaedam vero auxilium exereitus ' : Grand Coutumier, c. 44. It may be suspected that this really represents the state of things that existed in England under Henry IH, ; some of the nomi- nally military tenants had at least de facto established a right to do no more than pay scutage. Then on the muster roU of 1277 we find this entry, ' Robert of Lewknor says that he does not owe any service in the king's army, for he holds a knight's fee and a half of the escheat of Laigle [an escheated barony] and owes scutage when it is leviable for that knight's fee and a half; Pari. Writs, i. 202. Then from Edward II. 's time we have this curious case: — G. holds a knight's fee of the honour of H. which is in the king's hand; he asserts, and as it seems successfully, that his obligation is merely to pay scutage and not to serve in person ; the king who fills the place of the lord of the honour can only demand scutage; Madox, Exch. i. 652. 2 It would not be safe to lay down a general rule. In 1257 the abbot of St Albans, who had only to provide six knights, by a great effort succeeded in getting his military tenants to admit that they were bound to personal service ; he held a court for them under the great ash tree at St Albans and secured the presence of one of the king's justices who had come there to deliver the gaol. 252 Tenure. [bk. ii. been hastened by the subdivision of knights' fees. We come across persons who hold no more than aliquot parts of fees ; we find them even in what we may call the primary circle of feudalism, the circle of tenants in chief; they are common in the secondary circle. Sometimes a fee preserves a notional integrity though it has become divided into aliquot parts by subinfeudation or by partition among coheiresses. The abbot of St Albans confessed to holding six scuta or knights' fees. Each of these scuta was divided among several tenants holding of the abbot. When the king summoned his host, the various tenants of each scutum had to meet and provide a knight ; sometimes they did this by hiring a knight, or two Serjeants ; sometimes they elected one of their number to serve and con- tributed towards his expenses '■- A similar arrangement seems to have been made by the knights of Malmesbury ; it must have been a somewhat complicated one, for while the abbot confessed to but three fees, he seems really to have had twenty-one military tenants whom he treated as holding, unless our arithmetic fails us, 4||^ fees; sometimes one, sometimes another of these tenants did the service \ But we soon come upon small fractional parts, the twentieth part or the fortieth part, of fees, which fees have no longer any existence as integral wholes. Such fractions could hardly have come into being, but for the practice of taking a scutage in lieu of personal service, and the tenant's obligation is often expressed in merely pecu- niary terms; the charter of feoffment .says, not that he is to hold the fortieth part of a knight's fee, but that when scutage is levied at the rate of 40 shillings on the fee, he is to pay a shilling '. When the holder of a knight's fee has cut up a great part of it into little tenements each owing him some small amount of scutage, the understanding probably is that he [n 1277 they did their service in Wales and according to the chronicler the abbot was a great gainer thereby; for the total cost amounted to but 50 marks and almost all the prelates of England were compelled to pay as much as 50 marks per knight's fee for default of service. However soon after this even the abbot of St Albans had to make fine for default of service, on one occasion with 120 marks, on another with £120. (Mat. Par. Chron. Maj. vi. 372-6, 437-9; Gesta Abbatum, i. 435, ii. 94.) 1 Mat. Paris. Chron. Maj. vi. 437-9; Gesta Abbatum, ii. 45. ' Keg. Malmesb. ii. 389-393, 404, 407, 417. s See e.g. Bracton's Note Book, pi. 795, where a tenement is said to owe 10 pence scutage, when the rate is £2 on the knight's fee. OH. I. § 3.J Knight's Service. 253' is to do, or to provide, the requisite military service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those tenants who held integral fees. If to hold the fortieth part of a fee merely meant that the tenant had to pay one shilling when a scutage of two pounds per fee was exacted, the tenant of a whole fee would easily come to the conclusion that a payment of forty shillings would discharge his obligation. Thus a permanent commutation of personal service into money payments seems to have taken place ^ What is more, the right of a mesne lord to take scutage The lord's seems hardly to have been regarded, at least in the thirteenth scutage. century, as a common law right. A lord who had done his service, or made fine for not doing it, could with some trouble to hirnself obtain a writ de scutagio habendo, which ordered the sheriff to collect for him the scutage from his knights' fees '■'- The king is said to grant to the lords their scutage ; until the king has fixed the amount there is nothing that they can collect, and few if any of them attempted to collect it without obtaining the king's writs. Indeed it would seem that at least in Henry III.'s day they had no right to collect it. If they did not get a grant of scutage from the king, then the king himself took the scutage from their tenants for his own use ^- ^ The question ' whether esouage was a tenure distinct from knight service ? ' suggested by Littleton's text, has been learnedly discussed. by Madox, Wright, Blaokstone, Hargrave and others. The answer to it seems to be : — (1) From a, very early time there were many tenants, those of small aliquot parts of knights' fees, who were bound to pay scutage, but who can not, even in theory, have been bound to fight. (2) At a later date the great bulk of the military tenants of mesne lords seem certainly in fact, perhaps in theory also, to have been bound to do no more than pay scutage. (3) If a tenant was bound to pay scutage, he was deemed to hold ' per servitium militare ' and his lord had the rights of wardship and marriage. 2 The writ is in Beg. Brev. Orig. f. 88 (scutage of 1 Edw. III.). For earlier writs see Eot. CI. i. 371 (1217), 877 (1218), 475 (1221), 571 (1223), 605-610 (1224). See also Madox, Exch. i. 675; Braoton's Note Book, pi. 333, 1687, and Rot. Pari. i. 166 where on the petition of the barons the king grants them their scutage. So in Normandy the 'auxilium exercitus' is defined as 'iUud peouniale quod conoedit Princeps Normanniae, facto exercitus per quadraginta dies ser- vitio, baronibus vel miUtibus de illis qui tenent de eis feodis {con: feoda] vel de tenentibus suis in feodo loricali : nee maius auxilium de suis tenentibus poterunt extorquere quam eis concessum fuerit a Principe Normannorum ' ; Grand Cou- tumier (ed. Gruchy) c. 25. 3 Madox, Exch. i. 680-684; see especially the case on p. 682 note r. (27 Hen. III.) ; WiUiam de Hayrun is summoned before the Exchequer for having 254 Tenure. [bk. ii. knights' As already said, there is in scutage an element of royal and national taxation which is incompatible with purely feudal principles. Service Whether the tenant of a mesne lord could insist upon his instead of . , „ . . scutage. right to do service in the army mstead of paying scutage, is a question that we are absolved from discussing, for very probably it was never raised ^ But as regards that duty of ' castle-guard ' which was a common incident of military tenure, the Great Charter lays down the rule that if the tenant is willing to do the service in person he can not be compelled to pay money instead of doing it ^ However in the course of the thirteenth century this duty also seems to have been very generally com- muted for money payments. Eeduction One more exceedingly obscure process must be noticed. number of Somehow or another in the second half of the thirteenth cen- tury the tenants in chief succeeded in effecting a very large reduction in the number of fees for which they answered to the king '^. When, for example, Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckon- ing of the twelfth century, were holding about 784 fees, would account, and were suffered to account, for but little more than one hundred, while some thirteen knights and thirty-five Serjeants — two Serjeants being an equivalent for one knight — were all the warriors that the king could obtain from the lands held by the churches. The archbishop of York had reduced his debt from twenty knights to five, the bishop of El}"^ from forty to six, the abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three knights as due from his earldom of Essex; Gilbert of Clare, earl of Gloucester and taken scutage from a military tenant of his, whereas it ought to have been paid to the sheriff. 1 There is Norman authority from 1219 for an affirmative answer ' ludicatum est... quod Abbas [mesne lord] non potest alium mittere in loco eiusdem [tenant by knight's service] quando Eex oapit servioium suum de Abbate, dum modo idem miles in propria persona servioium quod debet de feodo suo facere velit ' ; Arestae Scaocariorum, Warnkonig, Franzosische Eechtsgesohichte, ii. Ap. p. 86. ^ Charter of 1215, o. 29. A substitute may be sent, but only for reasonable cause. ' See the two muster rolls of the feudal host; Parliamentary Writs, i. 197, 228. CH. I. § 3.] Knight's Service. 255 Hertford, offers ten knights, with a promise that he will send more if it be found that more are due. While however the lay- barons will generally send as many men as they professedly owe, the prelates can not even produce the very small con- tingents which they acknowledge to be due from them. Now these magnates were not cheating the king, nor endeavouring to cheat him. It was well known in the Exchequer, notorious throughout Cambridgeshire S that the bishop of Ely, who would confess to but six fees, had forty at the very least. The king was not deceived. The bishop having sent no knights at all had to pay a fine of 240 marks, that is 40 marks for each of the six fees. Some of the prelates, we are told, had to pay as much as 50 marks'" for every fee, and yet the scutage for this war was but two pounds, that is, three marks, on the fee. The reduction in the nominal amount of fees for which the baron is compelled to answer, is accompanied by an at least proportional increase of the amount that he has to pay in respect of every fee. This change seems to tell us three things. In the first Meaning of " , . the change. place, it was absolutely impossible for the prelate to get military service out of his military tenants. The practice of subinfeudation fostered by the king's court, had ruined the old system ; his fees were now split up into small fractions and they were in the hands of yeomen and small- squires. Secondly, he was willing to pay a large sum rather than hire knights. The knight with his elaborate panoply had become a very costly article. In the third place, the king by this time wanted money far more than he wanted knights; if he had money he could get soldiers of all sorts and kinds as pleased him best. And so he seems to have winked at the introduction of a new terminology, for really there was little else that was new. Provided that the bishop of Ely paid him £160 for his Welsh campaign, he did not care whether this was called a fine of six marks for each of forty fees, or a fine of forty marks for each of six fees, while the bishop, who would have the greatest difficulty in putting six heavy armed horsemen into the field, prefers the new set of phrases. But then, our already con- fused system is further confounded, for the bishop, who has but six fees for the king's service when the call is for warriors or a ' Eot. Hund. ii. 441. 2 Gesta Abbatum, ii. 94. 256 Tenure. [bk. ii. fine, will assuredly assert that he has, as of old, forty fees when the time comes for him to take a scutage from his tenants, and in this way he may, at the rate of three marks per fee, recover, if he is very lucky and very persistent, about half the sum that he has had to pay to the king. But in truth the whole system is becoming obsolete. If tenure by knight service had been abolished in 1300, the kings of the subsequent ages would have been deprived of the large revenue that they drew from ward- ships, marriages and so forth; really they would have lost little else \ Military \^e have next to observe that a lord when enfeoffing a service /. ■ i combined tenant, was free to impose upon that tenant other services in services, addition to that military service which was incumbent on the land. Suppose that B holds a knight's fee oi A; B may enfeoff of the fee, stipulating that G shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight's fee should have no serious service to perform in addition to the military service, though in such a case as we have put B would often stipulate for some honorary rent, a pair of spurs, a falcon, or the like. But when we get among the holders of small plots we constantly find that they must pay scutage while they also owe substantial rents^. A few entries on the Oxfordshire Hundred Roll will illustrate this. At Eycote, Adam Stanford holds the whole vill of the earl of Oxford for half a knight's fee ; he has a number of freeholders holding small plots ; they pay substantial rents and 'owe scutage'; one has a virgate, pays 7s. 6d a year and owes ' As regards the shape that scutage assumed at various periods, we have here dealt but very superficially with a most difiScult subject. We shall have' done some good if we persuade others that there are yet many questions to be answered by a diligent study of the exchequer rolls. 2 The fines of Eichard's and John's reigns present numerous instances of dispositions of both these classes: — thus (Fines, ed. Hunter, i., p. 22) a gift of half a hide to be held of the donor ' per forinsecum servioium quod ad tantam terrae pertinet'; (p. 31) a gift of n- virgate to be held of the donor 'faciendo inde forinsecum servicium quantum pertinet ad illam virgatam terrae pro omni servicio'; (p. 91) a gift of a quarter of a virgate to be held of the donor by the service of one pound of pepper annually ' salvo forinseoo servitio quod ad dominum Begem pertinet de eadem quarta parte virgatae terrae'; (p. 95) a gift of a messuage and seven virgates to be held of the donor by the service of 24 shillings annually ' salvo regali servicio scilicet servicio dimidii militis' ; (p. 274) a gift of a messuage and three acres to be held of the donor at a rent of 12 pence, ' saving the king's service, namely 3 pence to a scutage of 20 shillings and so in proportion,' CH. I. § 3.] Knight's Service. 257 scutage ; another holds three acres for the rent of a penny and owes scutage^ Often it is said of the small freeholders that besides their rent they owe royal or forinsec service (debent regale, debent forinsecumy, and, at least in general, this seems to mean that they pay scutage and are nominally tenants by knight's service ; for Bracton's rule is clear, namely, that if the tenant owes but one hap'orth of scutage (licet ad unwm ohoVwm), his tenure is military, and this rule is fully borne out by pleadings and decisions'. This point is important: — the division between tenants in socage and tenants by knight's service does not correspond, save in the roughest manner, to any political, social or economic division. The small yeoman often holds his little tenement by a tenure which is nominally and legally the same tenure as that by which the knight holds his manor*. With the duty of attending the king in his wars was often Castie- coupled the duty of helping to garrison his castles ; more rarely ^"*^*' the latter duty appears without the former. The knights of the Abbey of Abingdon were bound to guard the king's castle of Windsor*, the knights of the Abbey of Peterborough, his castle of Eockingham^ the knights of the Abbey of St Edmund, his castle of Norwich. In Henry I.'s day the bishop of Ely purchased for his knights the privilege of doing ward within the isle instead of at Norwich'. Such service was well known in Normandy* and France' and is mentioned in Domesday Book". The forty or fifty knights of St Edmunds were 1 Eot. Hund. ii. 756. 2 Eot. Hund. ii., e.g. 733, 767, 769. ^ Bracton, f. 37. See the eases cited above, p. 217, note 3. * It is rare, though not unknown, to find that a tenant in villeinage is said to pay scutage. Doubtless the weight of taxation often fell on the lowest class of tenants; but it might have been dangerous to exact scutage eo nomine from the villeins, as this might have encouraged them to assert that their tenure was free. 5 ffist. Abingd. ii. 3. 8 Eot. CI. i. 297. ' Pipe Eoll, 31 Hen. I., p. 44; Monast. i. 482. ^ See the Assisiae Normaniae in Warnkonig's Franzosische Eechtsgeschichte, ii., e. g. p. 73 (1208) : ' apud Bellum Moutem debebat servicium quinque militum per quadraginta dies ad custodiendum castellum ad custum domini de Bello Monte.' ^ VioUet, Etablissements, ii. 80. '" D. B. i. 151b: 'De eodem Leuuino tenuit Eadulfns Passaquam et invenie- bat duos loricatos in custodia de Windesores.' P. M. 17 258 Tenure. [bk. ii. divided into four or five troops (constahiliae), each of which had to guard Norwich castle for three months in the year*. Often a tenement owed ' ward' to a far oif castle ; thus in Cambridge- shire were lands held of the count of Aumale which owed ward to his castle of Craven^, and lands held of the count of Britanny which owed ward to his castle of Richmond'. We speak as though these castles belonged to their tenants in chief; but the kings were wont to regard all castles as in a sense their own, and the duty of castle guard, like the duty of service in the host, though due to the lord, was to be done for the king. Before the end of the thirteenth century however, payments in money had usually taken the place of garrison duty. While the military system of feudalism is thus falling into diengage. decay, there still may be found in the north of England scattered traces of an older military system. The Norman milites are already refusing to do the service to which their tenure binds them, but there are still in the ancient kingdom of Northumbria thegns holding in thegnage, drengs holding in drengage, thegns who are nominally bound to do the king's 'utware.' Were these tenures military or were they not? That was a puzzle for the lawyers. They had some features akin to tenure by knight's service : — thegns and drengs had been summoned to fight John's battles in Normandy; in other respects they were not unlike the serjeanties; they were sometimes burdened with services which elsewhere were con- sidered as marks of villeinage ; finally, as it would seem, they were brought under the heading of free socage. In truth they were older than the lawyers' classification, older than the Norman Conquest*. Tenure by Above WO have made mention of tenure by barony and barony. passed it by with but few words ; and few seem needed. True, we may find it said of a man not only that he holds a barony (tenet haroniam) but also that he holds by barony {tenet per haroniam) and this may look as though tenure by barony 1 This is a simplification of the story; the abbot and his knights differed as to the amount of the service to be done; Jocelin of Brakelond, 49, 135. 2 Eot. Huud. ii. 548. ■■ Rot. Hund. ii. 580. * See Maitland, Northumbrian Tenures, Eng. Hist. Rev. v. 625. CH. I. § 3. J Knight's Service. 259 should be accounted as one of the modes of tenured But so far as the land law is concerned, there seems no difference between tenure by barony and tenure by knight's service, save in one point, namely, the amount of the relief, about which we shall speak below. So far as regards the service due from the tenant, the barony is but an aggregate of knights' fees. There is no amount of military service that is due from a tenant by barony as such ; but his barony consists of knights' fees ; if it consists of twenty knights' fees he is answerable for the service of twenty knights, if it consists of fifty knights' fees, then he must produce fifty. And so again with the various incidents of tenure, aids, wardship, marriage, escheat, al^ save relief; there seem to be no special rules for tenure by barony or for the tenure of a barony ; it is but tenure by knight's service of a certain number of knights' fees, unless indeed it be — and in some cases it is — tenure by grand serjeanty. The fact that a certain mass of lands is deemed a barony has some few legal consequences of a subordinate kind. Always or generally some castle or some manor is regarded as the head of the barony, and it would seem that for some fiscal and administrative purposes the whole barony was treated as lying in the county that contained its head. Then again a widow is not to be endowed with the caput baroniae, and the caput baroniae is not to be partitioned among coheiresses^ Such rules as these may necessitate an inquiry whether a certain manor is the head of a barony or a single knight's fee held by a separate title', but they will not justify us in co-ordinating tenure by barony with the other tenures, such as knight's service and serjeanty. Of course however ' barony ' can not be treated as a mere The matter of land tenure. The barons, together with the earls, "°°*s®' have become an estate of the -realm, and to make a man a member of this estate it is not sufficient that he should be a military tenant in chief of the crown. A line has been drawn which cuts the body of such tenants into two classes. The question by what means and in accordance with what principle the line was drawn has been much debated. Madox contended that it was drawn once for all in the distribution of lands after ' Eot. Htmd. ii. 18: 'Badulfus de Gaugy tenet feodum de EUineham de dom. Eege in oapite per baroniam per servioium trium militum.' 2 Bracton, f. 76 b, 93. 3 Note Book, pi. 96. 17—2 260 Tenure. [bk. ii. the Conquest. Certain men were enfeoffed by the king to hold by barony and they were barons ; others were enfeoffed merely of knights' fees, had no baronies and were not barons'. Selden on the other hand supposed that originally all these military tenants in chief held by the same tenure and were equally entitled to be called barons, but that some statute or ordi- nance, perhaps of John's day, of which we have not the text, drew the distinction'. We shall probably be nearer the truth if, in accordance with later writers, we regard the distinction as one that is gradually introduced by practice, and one that has no precise theory behind it". The heterogeneous mass of military tenants in chief could not hold together as an estate of the realm. The greater men dealt directly with the king, paid their dues directly to the Exchequer, brought their retainers to the host under their own banners, were summoned to do suit in the king's court by writs directed to them by name; the smaller men dealt with the sheriff, paid their dues to him, fought under his banner, weire summoned through him and by general writs. Then two rules emphasized the distinction: — the knight's fee paid a fixed relief of 100 shillings, the baron made the best bargain he could for his barony ; the practice of summoning the greater people by name, the smaller by general writs was consecrated by the charter of- 1215. The greater people are maiores barones, or simply barones, the lesser are for a while barones secundae dignitatis and then lose the title altogether ; the estates of the greater people are baronies, those of the smaller are not ; but the line between great and small has been drawn in a rough empirical way and is not the outcome of any precise principle. The summons to court, the political status of the baron, we have not here to consider, while as regards the land law it is to all appearance the relief and the relief only that differences the barony from an aggre- gate of knights' fees, or makes it necessary to speak of tenure by barony. Escheated When however a certain territory had become recognised as a barony or an honour, this name stuck to it through all its fortunes. Honours and baronies were very apt to fall into the ' Madox, Baronia Anglicana. ' Selden, Titles of Honour, pt. ii., cap. 5, see. 21. * Hallam, Middle Ages, ed. 1837, vol. iii., p. 21. Stubbs, Const. Hist. i. 394, 605; ii. 181-184. Gneist, Verfassungsgesohichte, 237-8. honoars. CH. I. § 3.] Knight's Service. 261 hands of the king by way of forfeiture or escheat owing to the tenant's treason. When this happened they still kept their names ; the honour of Wallingford might have escheated to the king, but it was still the honour of Wallingford and did not lose its identity in the general mass of royal rights. Nor was this a mere matter of words. In the first place, the escheated honour would probably come out of the king's hands; the general expectation was that the king would not long keep it to himself, but would restore it to the heir of the former tenant, or use it for the endowment of some new family, or make it an appanage for a cadet of the royal house*. But the continued existence of the honour had a yet more definite, and a legal meaning. Normally, as we shall see hereafter, the military tenant in chief of the king was subject to certain exceptional burdens from which the tenants of mesne lords were free. A tenant holds of the lord of the honour of Boulogne : that honour escheats to the king ; the tenant will now hold immediately of the king ; but is he to be subject to the peculiar burdens which are generally incident to tenancy in chief? No, that would be unfair, it would be changing the terms of his tenure. This was recognised by the practice of the Exchequer under Henry 11.", and the rule was confirmed by the Great Charter'. Thus it becomes necessary to distinguish between those tenants in chief who are conceived as having always held immediately of the king, and those who hold of the king merely because a mesne lordship has escheated, in other words between those who hold of the king as of his crown {ut de corona) and those who hold of him as of an escheated honour (ut de escaeta, ut de honor e, ut de baronia)*. On the other hand, the relief for a barony having been fixed, two baronies do not become one merely because they are held by one person ; the honour of Clare, the honour of Gloucester, the honour of St Hilary and a moiety of Earl Giffurd's honour meet in the hands of Earl Gilbert ; he has to pay for his three and a half honours a relief of £350^ An honour or barony is thus 1 Stubbs, Const. Hist. i. 433. ;<* ' Dial, de Scac. ii. 24. 3 Charter, 1215, c. 43. , * Madox, Baronia Anglicana, throughout ; Hargrave, ndtes to Co. Lit. 108 a ; ChaUis, Beal Property, p. 4. 5 Madox, Exch. i. 317. 262 Tenure. [bk. II. regarded as a mass of lands which from of old have been held by a single title'. Difficulty of de- fiaing serjeanty. Serjeanty and Types of owed by the king's tenants in chief. § 4. Serjeanty. The idea of a serjeanty as conceived in the thirteenth century is not one that can be easily defined. Here as else- where we find several very different classes of men grouped together under one heading so that the bond that connects them is very slight ; also we find it difficult to mark off serjeanty from knight's service on the one hand and from socage on the other. The tests suggested by Littleton are inapplicable to the documents of this age I We can not say that the duty of serjeanty must be performed by the tenant in his proper person, we can not say that ' petty serjeanty ' has necessarily any con- nexion with war, or that one can not hold by serjeanty of a mesne lord, or that petty serjeanty is 'but socage in effect''. Even the remark that ' serjeantia in Latin is the same as servitium'* can not be treated as strictly true. Here indeed lies the difficulty : — while every tenure implies a service (servitium) it is not every tenure that is a serjeanty (seriantia, serianteria) : every tenant owes service, but not every tenant is a servant or Serjeant (serviens), still less of course is every tenant a servus. A single Latin stock has thrown out various branches; the whole of medieval society seems held together by the twigs of those branches. Here we have to deal with one special group of derivative words, not forgetting that it is connected with other groups °. We may begin by casting our eye over the various 'ser- jeanties ' known in the thirteenth century. First we see those forms of service which are the typical 'grand serjeanties' of later days, ' as to carry the banner of the king, or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the ' Madox, Bar. Aug., p. 27 : ' I think there were not any honours created de novo by feoffment in the reign of King Henry III. or perhaps of King John.' ' See Britton, ii. 10, and Ihe editor's note. 3 Lit. sees. 153-161. ^ m, geo. 154. ^ Some scribes distinguish 'seriantia,' the land, from 'serianteria,' the service or office. CH. I. § 4. J Serjeanty. 263 receipt of his Exchequer^' Some of the highest offices of the realm have become hereditary ; the great officers are conceived to hold their lands by the service or serjeanty of filling those offices. It is so with the offices of the king's steward or seneschal, marshal, constable, chamberlain, and though the real work of governing the realm has fallen to another set of ministers whose offices are not- hereditary, to the king's justiciar, chancellor and treasurer, still the marshal and constable have serious duties to perform^. Many of the less exalted offices of the king's household have become hereditary serjeanties ; there are many men holding by serjeanties to be done in the kitchen, the larder and the pantry'. Even some of the offices which have to do with national business, with the finance of the realm, have become hereditary ; there are already hereditary chamberlains of the Exchequer who do their service by deputy*. We observe that all these offices, if we regard only their titles, have some- thing menial about them, in the old and proper sense of the word 'menial'; their duties are servitia mansionalia, they ave connected with the king's household. It may be long since the predecessors in title of these men really cooked the king's dinner or groomed the king's horses : but they glory in titles which imply, or have implied, that their duties are of this menial kind ; nor is it always easy to say when or whether the duty has become honorary. When the Conqueror gives half a hide of land in Gloucestershire to his cook' it were bold to say that this tenant did not really roast and boil ; and what shall we say of the cook of the count of Boulogne ?° Then scattered about England we find many men who are said to hold by serjeanty and are bound by their tenure to do other services, which are not so distinctly menial, that is to say, are not so closely connected with the king's household. They are bound to carry the king's letters, to act as the king's summoners when the barons of the neighbourhood are to be summoned, to ' Lit. sec. 153. ^ gtubbs, Const. Hist. i. 383. ^ ' Seriantia W. M. pro qua debuit esse emptor coquinae dom. Begis,' Testa de Neville, 78 ; ' Seriantia hostiariae dom. Eegis,' lb. 93 ; ' Seriantia pro qua debuit oustodire lardariara dom. Eegis,' lb. 146, 232. We are compelled to cite the bad but only edition of the Testa. - Madox, Exch. ii. 295. 5 D. B. 162 b. « 'Eobertus de Wilmiton tenet Wilmiton per sergeantiam de honore de Bononia, et valet ij. maroas et debet esse cocus Comitis,' Testa de Neville, 217. 264 Tenure. [bk. ii. aid in conveying the king's treasure from place to place, or the like'. Again, and this is very common, theirs is some serjeanty of the forest, they are chief foresters, or under foresters". The king's sport has given rise to numerous serjeanties; men are bound by tenure to keep hounds and hawks for him, to find arrows for him when he goes a shooting' ; and we can not say that these are honorary or particularly honourable services : to find a truss of straw for the king's outer chamber when he stays at Cambridge, this also is a serjeanty ^ The carpenter, the mason, or the gardener who holds land in the neighbourhood of some royal castle in return for his work, holds a serjeanty^ But again many serjeanties are connected with warfare. The commonest of all is that of finding a servant or Serjeant (servientem) to do duty as a soldier in the king's army. Sometimes he is to be a foot soldier^ sometimes a horse soldier (servientem peditem, servientem equitem) ; often the nature of the arms that he is to bear is prescribed ; often he is bound to serve for forty days and no more, sometimes only for a shorter period ; often to serve only against the Welsh, sometimes to serve only within his own county". It would be a mistake to think that tenure supplied 1 ' Seriantia J. de C... pro qua debuit invenire unum servientem itinerantem in hnndredo in N. ad faciendum praecepta vicecomitis Northantoniae ex parte dom. Eegis,' Testa, 32. For serjeanty of conveying treasure, see lb. 58, 70, 72, 73, 78; for that of summoning barons, 70, 72. 'Istae duae dimidiae hidae debent portare litteras dom. Begis, quocienscunque veuerint in comitatu Herefordiae,' lb. 71. Serjeanty of keeping Exeter gaol, lb. 194. Serjeanty of testifying to summonses, lb. 195. Serjeanty of being coroner, lb. 394. ^ ' Seriantia cnstodiendi forestam de E.' ; ' Seriantia custodieudi hayam de B.' Testa, 52, 86, 93 etc. ^ ' Seriantia H. de M. pro qua debuit docere unum braohetum ad mandatum dom. Eegis,' Testa de Neville, 32; 'Seriantia W. B. pro qua debuit deferre unum ansturoum a porta oastri de Salobiria usque Stabbing in Essex quolibet anno ad custum proprium,' lb. 57. ' Seriantia ad eustodiendum falcones Regis,' lb. 108. 'Seriantia D. pro qua debuit esse venator dom. Eegis,' lb. 115. 'Seriantia per faloonariam,' lb. 119. 'Seriantia pro qua debuit custodire canes luparios,' lb. 147. Serjeanty of bearing a bow and four arrows when the king hunts on Dartmoor, lb. 194. * Testa, 357 ; so to find litter for the king's bed and food for his horses at B., lb. 237 ; so to meet the king when he comes into the rape of Arundel and give him two capons, lb. 229. = Testa, 409, 118-9. " ' Seriantia inveniendi unum servientem peditem apud S. per xv. dies,' Testa, 53;,.,'per viij dies,' lb. 54. 'E. de P. tenet et debet servire dom. Eegi ad custum suum in Wallia cum duobus equis per octo dies et postea ad stipendia dom. Eegis et ultra mare ad stipendia dom. Eegis,' lb. 54; 'B. tenet per OH. I. § 4.J Serjeanty. 265 the king only with knights or fully armed horsemen ; it supplied him also with a force, though probably a small force, of light horse- men and infantry, of bowmen and cross-bowmen'. It supplied him also with captains and standard bearers for the national militia ; men were bound by their tenure to lead the infantry of particular hundreds". It supplied him also with the means of military transport, with a baggage train ; few serjeanties seem commoner than that of sending a 'serjeant' with horse, sack and buckle for the carriage of armour and the like". It supplied him, to some small degree, with munitions of war ; if one was bound by tenure to find lances, arrows or knives, this was reckoned a serjeanty. One may well hold by serjeanty of a mesne lord. Bracton serjeanty speaks clearly on this point. The tenant of a mesne lord may {"ordL^™* be enfeoffed by serjeanty and the serjeanty may be one which concerns the lord bimself or one which concerns the king. Thus, for example, he may be enfeoffed as a ' rodknight ' bound to ride with his lord, or he may be bound to hold the lord's pleas, that is, to act as president in the lord's court, or to carry the lord's letters, or to feed his hounds, or to find bows and arrows, or to carry them ; one can not enumerate the various possible serjeanties of this class. But there are, says Bracton, other seijeanties which concern the king and the defence of the realm even though the tenant holds of a mesne lord; as if he be enfeoffed by the serjeanty of finding so many horse or foot soldiers with armour of such or such a kind, or of finding a man with horse, sack and buckle for service in the army^ All this is fully borne out by numerous examples. The Types of serjeanty seriantiam et debet de servicio unum servieutem equitem cum uuo haubergello °'^^"- *° mesne ad eundum cum dom. Bege quando vadit in exercitu in Wallia,' lb. 55. See lords. for many variations of such service lb. 58, 59. 1 ' Seriantia N. le Archer... pro qua debuit invenire dom. Eegi unum hominem cum arcu et sagittis in exercitu suo infra metas Angliae per xl. dies ad oustum suum proprium'; 'Seriantia A. de H.... pro qua debuit sequi dom. Begem in exercitu suo in Anglia cum arcu et sagittis per xl. dies ad custum proprium,' Testa, 32. The seriantia archeriae, seriantia balisteriae, are often found. 2 Serjeanty to be constable of 200 foot soldiers so long as the king is in Wales, Testa, 58. Serjeanty to carry a pennon in the king's army before the foot soldiers of the hundred of Wootton, lb. 114 ' Servicium portandi baneram populi prosequentis per marinam (?),' lb. 119. 3 As to these ' sack and buckle men,' some references are given in Pleas in Manorial Courts, (Selden Soc.) i. 186. * Bract, f. 35 b. Compare Fleta, p. 198. 266 Tenure. [bk. ii grand serjeanties of the king's household were represented ii the economy of lower lords. Thus John of Fletton held land a Fletton in Huntingdonshire by the service of being steward ii the abbot's hall at Peterborough^ ; at Cottesford in Oxfordshin John White is bound by tenure to hold the lord's court twice i year^ ; in the same county a tenant of the earl of Lincoln hold by the service of placing the last dish before the earl, and shal have a rod from the earl like other free Serjeants' ; the abbot o Gloucester has tenants who spread his table, who hold towel and pour water on his hands^ In the twelfth century th( stewardship of the Abbey of Bury St Edmunds was hereditary in the family of Hastings, but was executed by deputy I Oi the whole, however, the great prelates and barons seem to hav( followed the policy of their royal master and seldom permittee substantial power to lapse into the hands of hereditary officers the high steward of a monastery, like the high steward of th( realm, was a man for pageants rather than for business". Stil such serjeanties existed. The service of carrying the lord's letters was not uncommon and may have been very useful'; th( service of looking after the lord's wood was reckoned a serjeanty' In various parts of England we find a considerable class o tenants bound to go riding with their lords or on their lord'i errands, and doubtless, as Bracton suggests, we have here the radchenistres and radmcmni of Domesday Book'; on some estates they are known as ' esquires,' and their tenure is £ 'serjeanty of esquiry".' Miiitaiy But again there may, as Bracton says, be warlike service te he?d of '^^ ^^ done. A tenant, for example, of the abbot of Ramsey is mesne lords. ' Kot. Hund. ii. 639. " R. H. ii. 838. 3 R. H. ii. 833. ■• Cart. Glouo. ii. 207-9. 5 Jooelin of Brakelond, (Camd. See.) 20. * The biographer of Abbot Samson of St Edmunds regards as a part of tb prudent administration of his hero that he committed the affairs of the eigh and a half hundreds belonging to the abbey to mere domestics, ' servientibui Buis de mensa sua'; Jocelin, 21. ' See e.g. R. H. ii. 336, 539 ; Cart. Glouc. iii. 69. 8 R. H. ii. 336. » See Bracton's Note Book, pi. 758 ; Cart. Glouc. i. 856, ii. 101, 102, 207-9 iii. 149. The abbot of Ramsey has ridemanni, Manorial Pleas, i. 53. " Cart. Glouc. ii. 207-9 : ' debuerunt facere unum esquireriam nomini Beriantiae'; lb. iii. 149 'per serianteriam servitlo esquierii.' Gesta Abbatum i. 264: six armigeri are enfeoffed by the service of riding with the abbot o St Albans to his cell at Tyuemouth and carrying his baggage. OH. I. § 4.] Serjeanty. 267 bound to find horse, sumpter saddle, sack and fastening pin to carry the harness of the knights bound for the Welsh war^; the prior of St Botolph at Colchester is bound to the same service by mesne tenure". Again the tenant may have to go personally to the war in his lord's train to fight, not as a miles but as a serviens ; Reginald de Bracy is bound by the service of serjeanty to follow William de Barentin as a serviens at William's cost'. , Now it may be impossible to bring all these very miscella- Essence of neous tenures under one definition which shall include them, ^®T**" ?• but exclude knight's service and socage. However the central notion seems what we may call ' servantship'; we can not say 'service,' for that word is used to cover every possible return which one man can make to another for the right of enjoying land. Obviously in many cases the tenant by serjeanty not only owes 'service' in this large sense, but is a servant {serviens) ; he is steward, marshal, constable, chamberlain, usher, cook, forester, falconer, dog keeper, messenger, esquire ; he is more or less of a menial servant bound to obey orders within the scope of his employment. Modern efforts to define a 'servant' may illustrate old difficulties as to the limits of ' serjeanty ' ; it may be hard to draw the line between the duty of habitually looking after the king's bed-chamber and that of providing him with litter when he comes to a particular manor. But the notion of servantship, free servantship, as opposed to any form of serfdom, seems to be as a matter of history the notion which brings the various serjeanties under one class name, and it points to one of the various sources of what in the largest sense of the term we call the feudal system. One of the tributaries which swells the feudal stream is that of menial service; it meets and mingles with other streams and in England the intermixture is soon very perfect ; still we can see that serjeanty has come from one quarter, knight's service from another, socage from yet a third, and we may understand how, but for the unifying, generalizing action of our king's court, a special law of serjeanty might have grown up, distinct from the ordinary law of land tenured 1 Manorial Pleas, i. 62, 63. Si B. H. i. 157. ' B. H. ii. 767. ^ In Germany the servientes or ministeriales became a powerful class. A group of servientes, e.g. those of an abbey, had a court of its own and law of its The Serjeants in the army. 268 Tenure. [bk. II. As regards the military serjeanties we have to remember that in the language of military affairs serviens had acquired a distinct meaning. An army is largely made up of milites and servientes, of fully armed horsemen, and of men who, whether they serve on foot or on horse, have not the full knightly panoply\ Now when a tenant by serjeanty is bound to go to the war as a serviens with horse, purpoint, iron cap and lance, the difference between his tenure and knight's service seems to resolve itself into a mere difference between one kind of armour and another, or one position in the army and another ; and it is possible that a certain ambiguity in the word serviens, which will stand for servant, and will stand for light armed soldier, may have attracted within the sphere of serjeanty certain tenures which had about them no strong trace of what we have called ' servantship.' Still originally the servientes of the army were so called because they were attendants on the milites, they carried their shields for them and were their esquires — for the esquire (scutifer, armiger) of those times was one who carried the shield or arms of his lord. Thus by one way or another we come back to the idea of 'servantship' as the core of serjeanty''. Serjeanty Looking back towards the Norman Conquest we can run no Domesday gi'eat risk in seeing the predecessors of these tenants by serjeanty in the servientes of Domesday Book. Near the end of Book. own {Dienstrecht as contrasted with Lehnrecht, Hofrecht, Landrecht), see Waitz, Verfassungsgeschichte, v. 288-350, 428-442. The nearest approach that England in the thirteenth century can show to such a court of servientes is the court of the king's household; but even this aims rather at a common law jurisdiction over all that happens within the verge of the palace, than at developing a special law for the king's servientes. In England as in Germany the duty of the serviens is frequently termed a ministerium ; see e.g. Pipe Boll, 31 Hen. I., in which it is common to find a man making fine ' pro terra et ministerio patris sui.-' -The word magisterium also occurs; e.g. Whithy Cart, i. 222 'magisterium officii coquinae,' a hereditary office; Bot. Cart. 46 'magis- tratum mariscalciae curiae nostrae.' 1 Any contemporary account of warfare wiU illustrate this, e.g. Paris's account of the war in 1216-7 (Chron. Maj. iii. 6-23), '...quidam serviens strenuus...exierunt de castello milites et servientes... exierunt denuo milites et servientes.,,exierunt de castello quod Munsorrel appeUatur milites et ser- vientes... decern milites cum servientibus multis...oapti sunt milites quadringenti praeter servientes equites et pedites, qui facile sub numero non cadebant.' We do not however suggest that all these servientes were bound to fight by tenure. ^ As to the military servientes see Selden, Titles of Honour, part ii. c. 5, § 47. CH. I. § 4.] Serjeanty. 26.9 the survey of a county we sometimes meet with a special section devoted to servientes Regis. Thus in Wiltshire after the Terra Tainorum Regis comes the Terra Servientium Regis^; it is so in Dorsetshire''; in Devonshire and Leicestershire the Servientes Regis have a special section'; in Oxfordshire we find Terra Ministrorum Regis", and when elsewhere we meet with Famuli Regis^ we may suppose that this is but another name for the Servientes and Ministri. We can tell something of their offices. Among the Wiltshire Servientes are three chamberlains (came- ram), a hoarder (granetarius) and a cross-bowman (arhalistarius); elsewhere are an archer, an usher, a goldsmith, a baker, a bedchamber man ; near the end of the survey of Hampshire we find a treasurer, two chamberlains, a hunter, a marshal, a physician and a barber holding in chief of the king^ In some cases it is possible to trace the estates of these persons until we find them definitely held by serjeanty. Again there can be little risk in finding the ancestors in law of Bracton's rodknightes'' and the abbot of Ramsey's ridemanni in the radchenistres and radmanni of Domesday Book. It is true that in the western counties these radchenistres are occasionally found in large groups ; there may be even twenty of them on a manor*; but in what was for Bracton the leading case on serjeanty the abbess of Barking asserted that she had full thirty tenants on one manor bound to ride about with her wherever she would'. However the makers of Domesday Book were not concerned to specify the terms on which the tenants, especially the tenants of mesne lords, held their lands ; of ser- jeanties we read little, just as we read little of knightly service. So soon however as any attempt is made to classify tenures, the serjeanties appear in a class by themselves. Glanvill, after defining the relief payable for knights' fees and for socage tenements, adds that as to baronies nothing as yet has been definitely settled, the amount of the relief being at the will and mercy of the king; the same, he says, is true of serjeanties". ID. B. i. 74b. 2D. B. i. 84b. " D. B. i. 117 b, 236 b. * D. B. i. 160 b. - D. B. u. 4 b, 98 b, 110 b. « D. B. i. 49. ' Braoton, f. 35 b. 8 EUiB, Introduction, i. 72. 9 Bracton's Note Book, pi. 758. Compare Waitz, VerfassungageBchiehte, V. 293. i» Glauv. ix. 4. 270 Tenure. [bk. ii. In 1198 the distinction was enforced by the great fiscal measure of that year; from the general land tax the serianteriae held of the king were excepted, but they were to be valued and the servientes who held them were to be summoned to meet the king at Westminster to hear and do his bidding^ Serjeanty Other distinctions appear in course of time. Even in Braeton's and other r- i i • p p tenures. day the amount oi the relief for a serjeanty was not yet fixed ; it was to be ' reasonable ' but no more than this could be said^. In later days we find it fixed at one year's value of the land ; but how or when this definition was arrived at we do not know"- That the Serjeant's relief remains uncertain long after the reliefs of barons, knights and socagers are fixed is another fact which points to the peculiar nature of the relationship which had been involved in the tenure ; it was not the mere relation between lord and tenant, or between lord and man, but was also the relation between master and servant, and though a feoffment had been made to the tenant and his heirs, the law was slow to dictate the terms upon which the lord must receive the heir into his service. Again we find that a tenement held by serjeattuy is treated as inalienable and impartible. As regards alienation we shall be better able to speak hereafter, but will premise this much, that the king is rigorously enforcing the rule that his Serjeants can not without his leave alienate their land, even by way of subinfeudation, at a time when he is not, or is not systematically, enforcing the same rule against his other tenants. We have pretty clear proof that so late as John's reign it was though b that a serjeanty could not be partitioned among coheiresses; the eldest daughter would take the whole^: — this also is a very intelligible rule if we have regard to the ' serviential ' character of the tenure ; a serjeanty must not be ' lacerated '=. As to the wardship and marriage of tenants by serjeanty there was much dispute, and in course of time a line was drawn between what were called 'grand' and what were ' Hoveden, iv. 47. Bound, Bng. Hist. Bev. iii. 501, has shown that some of the returns made on this occasion are preserved in the Testa de Neville. 2 Bract, f. 84 b. ' It seems to be assumed in 1410, Y. B. 11 Hen. IV. f. 72 (Trin. pi. 9) and is stated by Littleton, sec. 154. * Placit. Abbrev. p. 39 (Kent) ; compare p. 34 (Kent). Eot. Obi. p. 237 ; the eldest of several sisters claims the whole of her dead brother's land ' quia ilia terra est de sergenteria.' 5 Placit. Abbrev. p. 48 (Bedf.) ; Bract, f. 395. CH. I. § 5.] Socage. 271 called ' petty' serjeanties. To this matter we must return ; but by means of the rules to which allusion has here been made, tenure by serjeanty was kept apart from tenure . by knight's service on the one hand and tenure by socage on the other, and even in the middle of the thirteenth century it still had an importance which is but faintly represented by the well known sections of Littleton's book. § 5. Socage. Any tenure that on the one hand is free and on the other Socage. hand is not spiritual, nor military, nor ' serviential,' is called tenure in free socage : — to this result lawyers are gradually coming. Obviously therefore this term 'socage' will have to cover a large field ; it will have to include various relationships between men, which, if we regard their social or economic or even their purely legal aspects, seem very different from each other. We may look at a few typical cases. (a) The service which the tenant owes to his lord may be Types of merely nominal : he has no rent to pay or has to give but a rose every year just by way of showing that the tenure exists. Such a case may be the effect of one of several different causes. It may originate in what we should call a family settlement ; a landowner sometimes provides for a daughter or a younger son by a gift of land to be held by a nominal service. Or again the gift may be a reward to some dependant for past services, or a retaining fee for services to be rendered hereafter, which services however are not defined and are not legally exigible. Or again there may well have been what in truth was a sale of the land ; in return for a gross sum paid down a landowner has created a nominal tenure. To have put the purchaser in the vendor's place might have been difficult, perhaps impossible; so the purchaser is made tenant to the vendor at an insignifi- cant rent. (h) Such cases gradually shade off into others in which a substantial rent has been reserved. We pass through the very numerous instances in which the lord is to receive yearly some small article of luxury, a sparrowhawk, a pair of gloves, a pair of gilt spurs, a pound of pepper or of incense or of wax, to other cases in which the rent, if we can not call it a ' rack 272 Tenure. [bk. ii. rent,' is 'the best rent that can reasonably be gotten.' We thus enter the sphere of commerce, of rents fixed by supply and demand. Such tenures as these may be found in every zone of the territorial system. The tenant may be holding of the king in chief; the king has as we should say granted perpetual leases at substantial rents of some of his manors, the lessees being sometimes lay barons, sometimes religious houses'. Again from the Conquest onward, to say nothing of an earlier time, very great men have not thought it beneath them to hold church lands at easy rents^. It is an accusation common in monastic annals that the abbots of the Norman time dissipated the lands of their houses by improvident grants to their foreign kinsmen or by taking fines instead of reserving adequate rents. In such cases the tenants in socage will have other tenants in socage below them, who will pay them heavier rents. Ultimately we come to the actual occupant of the soil, whose rent will in many cases represent the best offer that his landlord could obtain for the land. Occasionally he may be pajdng more for the land than can be got from the villeins of the same village. (c) Sometimes we find in charters of feoffment that the feoffee besides paying rent is to do or get done a certain amount of agricultural labour on his lord's land, so much ploughing, so much reaping. The feoffee may be a man of mark, an abbot, a baron, who will have many tenants under him and will never put his hand to the plough^. These cases are of importance because they seem to be the channel by which the term socage gradually spreads itself. {d) Finally within a manor there often are tenants bound to pay divers dues in money and in kind and bound to do or get done a fixed quantity of agricultural service for their lords. Their tenure is often regarded as a very old one ; often they 1 Thus e. g. the prior of Barnwell held of the king the ancient demesne manor of Chesterton at a rent of £30; Eot. Hund. ii. 402. '' For early instances see Burton Cart. 30, 31. The Charter of 1215, c. 37, shows that the king has tenants in chief who hold in socage, burgage, fee farm. ' See e.g. in Gloucester Cart. i. 322 the elaborate labour services due from the abbot of Gloucester to the Templars. In the north of England among the tenants in thegnage and drengage it is common to find the lord of a whole vill bound to supply a number of ploughers and reapers for the assistance of his over-lord. CH. I. § 5.J Socage. 273 have no charters which express its terms'. Hereafter we shall see that it is not always easy to mark the exact line which separates them from the tenants in villeinage among whom they live and along with whom they labour for the lord's profit. Some of these yeomen are known as free sokemen (sokemanni, sochemanni) ; but this name is not found very commonly except on ' the ancient demesne ' of the crown. Of their position we must speak hereafter, for it can only be fully discussed in cocnexion with the unfree tenures ; but we should notice at once that the boundary between freedom and unfreedom cuts through the province of socage. If there are free sokemen there are also bond sokemen ; if there is free socage there is also villein socage. Now to all appearance the term socage, a term not found in Gradual Normandy, has been extending itself upwards ; a name appro- of the term priate to a class of cultivating peasants has begun to include the ^°'"'se. baron or prelate who holds land at a rent without being burdened with military service. Of such a man it would seem more natural to say that he holds at a rent (tenet ad censum) than that he holds in socage, and for a century and more after the Norman Conquest it is very rare to call his tenure socage. He is sometimes said to have /eoditm censuale ; far more commonly he is said to hold 'in fee farm.' This term has difficulties of its Pee farm, own, for it appears in many different guises ; a feoffee is to hold in feofirma, in feufirmam, in fedfirmam^, in feudo firmam, in feudo firma^, ad firmam feodalem*, but most commonly, in feodifirma. The Old English language had both of the words of which this term is compounded, both feoh (property) and feorm (rent)°; but so had the language of France, and in Norman documents the term may be found in various shapes, firmam fedium, fevdifirmam". But whatever may be the precise history of the phrase, to hold in fee farm, means to hold heritably, perpetually, at a rent ; the fee, the inheritance, is let 1 Thus at Offord Cluny there is a group of tenentes per eartam and a much larger group of tenentes per vettcs feofamentum ; Eot. Hund. ii. 683. " Burton Cart. 31, 37. 3 Hist. Abingd. ii. 65, 128, 167. " Eeg. Malm. u. 173 ; Bot. Obi. p. 12, 68. " But the latter seems to be derived from Low Latin, in which firma has come to mean a fixed rent or tribute ; Skeat, s.v. farm. ' Delisle, Etudes sur la condition de la classe agrioole en Normandie, 45. P. M. 18 274 Tenure. [bk. ii. to farm. This term long struggles to maintain its place by the side of socage ; the victory of the latter is not complete even in Bracton's day ; the complete merger of fee farm in socage may be due to a statute of Edward I., though the way for it had long been prepared'. ?!™™^ °* -A-S to the word socage, a discussion of it would open a series of very difficult problems about the administration of justice in the days before the Conquest. Postponing this, we have here to note but two points. Bracton believed — erroneously no doubt, but erroneous etymology is a force in the history of the law — that socage had to do with soc, the French word for a ploughshare^; tenants in socage therefore are essentially agriculturists, and the duty of ploughing the lord's demesne is the central feature of socage. In the second place if we turn to the true derivation we come to much the same result ; socage no doubt is at starting the tenure of those sokemen of whom we read in Domesday Book ; socage is an abstract term which describes their condition. Gradually it has been extended and therefore attenuated until it is capable of expressing none but negative characteristics : — socage is a tenure which is not spiritual, not military, not serviential. No similar extension has been given to the word sokeman ; in the thirteenth century many persons hold in socage who would be insulted were they called sokemen ; for the sokemen, even the free sokemen, are a humble, though, it may be, a well to do class \ ?onS" '^^^^ *^^^ ^^^^ ^^^"^ ^ numerous class we may gather as to military from Other evidence so from this, that socage becomes the tenure. ' For the co-ordination of fee farm and burgage with socage, see Magna Carta, 1215, c. 37 : ' Si quis teneat de nobis per feodifirmam, vel per sokagium, vel per burgagium...oceasione illius feodifirmae, vel sokagii vel burgagii.' Also Bracton, f. 85 b, 86, where as regards relief a distinction is drawn between socage and fee farm. The Statute of Gloucester (6 Edw. I. c. 4) seems in course of time to have generated the notion held by Coke that a rent is not ' a fee farm rent' unless it amounts to one-fourth of the annual value of the land- see 2nd Inst. 44, Co. Lit. 143 b, and the note in which Hargrave shows 'that neither in the statute nor in earlier history is there any warrant for this restriction of the term. 2 Bracton, f. 77b : 'Et dici poterit sockaginm a socko, et inde tenentes qui tenent m sookagio sockemanni dici poterunt, eo quod deputati sunt ut videtur tantummodo ad culturam.' As to the history of the Old French soc see Skeat, s.v. socket. Apparently it occurs in Domesday Book, i. 167 b: 'unus burgensis reddit iiij. socoos.' " See Vinogradoff, Villainage, p. 196. CH. I. § 5.] Socage. 275 one great standing contrast to military tenure, and as the oppressive incidents of military tenure are developed every man who would free his holding from the burdens of wardship and marriage is anxious to prove that he holds in socage : to gain this end he is full willing to sink somewhat of dignity ; he will gladly hold by the peasant's tenure when the most characteristic marks of that tenure are immunities — no scutage, no wardship, no marriage ^ Thus free socage, when that term has attained its full Socage as compass, appears as the great residuary tenure, if we may so siduary speak ; it is non-military, non-serviential, non-elemosinary. If however we go back a little way to the first half of the twelfth century, we begin to doubt whether we can strictly insist on the most characteristic of these negative attributes. The army is but gradually taking its new shape ; the sokemen of the abbot of Peterborough serve along with the knights^. In Edward I.'s day the tradition among the Oxfordshire jurors was that the ancestors of many of the bishop of Lincoln's socage tenants were free sokemen or ' quasi sokemen' who served the king in the war for forty days at their own cost with purpoints, lances and iron caps'. It is not in the past that -we must look for clear definitions. Tenure in burgage, if we examine but one specimen of it, Burgage, may seem to differ in no essential from free socage. The service due from the tenant to his lord is very generally a mere money rent, though there may be some ploughing or the like to be done. But if we thus isolate a single tenant from his fellows, the spirit of burgage escapes us. The tenant is, at least normally, a burgess, a member of a privileged com- munity, which already aspires to become a municipal corpora- tion. This is not the place in which to discuss the history of the boroughs, still we ought just to notice that tenure has been an important element in it. The general belief of the time 1 In Glanvill, vii. 11, and even in Braoton, f. 87 b, the heirs who escape wardship in chivalry are still the heredes sokemwnnorum. The term socager seems to be of later date. 2 Chron. Petroburg., p. 173, e.g. ' Sodhemanni de Ailintona i. hidam et i. virgam et serviunt otun militibus.' ' Rot. Hund. ii. 748-9. These entries are very curious : ' set anteoessores eius solebant esse liberi quasi sokemanni et solebant facere servicium dom. Eegi in guerra,' etc. 18—2 276 Tenure. [bk. ii. seems to be that the earliest stage in the acquisition of cor- porate existence was some act of enfranchisement ; a lord, often the king, but sometimes another great man, set free a group of tenants from labour services, consenting to take money rents instead. A further stage is reached when the lord grants the farm of the borough {firma hurgi) to the men of the borough ; they become collectively liable to him for a gross rent, and in return collect the rents due from the several tenements and make what profit they can out of the transaction. But though the nascent corporation has thus become entitled to collect the rents and keep them for its own use, still it is not conceived that a tenant holds his burgage of the corporation, he holds of the king or other the lord of the boroughjK Burgage Regarded merely as a tenure, the chief characteristic of borough burgage is its subjection to local custom. Other free tenures, socage for example, may be affected by local custom, but what is exceptional in their case is normal in the case of burgage. The lord has made over to the men of the borough his court and the profits of his court ; very frequently a royal charter has conceded that actions for burgage tenements shall not be tried except in the court of the borough; thus local custom has room within which it can grow and is not liable to be set aside in favour of the common law. It is chiefly within the domain of private law, it is about such matters as in- heritance and dower, that the borough customs have their say. The point that most concerns us here is their tendency to treat the burgage tenement as an article of commerce ; it is likened to a chattel ; not only can it like a chattel be disposed of by will, but ' it can be sold like a chattel.' One man Of course it was possible that a man should hold of many by many different lords by many different tenures. This no one would deny; but some of the classical expositions of 'the feudal system ' and ' the manorial system ' are apt to make the texture of medieval society look simpler than really it was, and we think it part of our duty to insist that the facts which the lawyers of the thirteenth century had to bring within their theories were often extremely complicated. Therefore let us fix our eyes on one man. Sir Robert de Aguilon, and see what he held on the day of his death in 1286. He held lands at Greatham in Hampshii-e of the king at a rent of 18s.; he held lands at Hoo in Kent of the abbot of Reading at a money rent ; temires. CH. I. § 6.] Homage and Fealty. 277 he held lands at Crofton in Buckinghamshire of William de Say by some service that the jurors did not know ; he held a manor in Norfolk of the bishop of Norwich by the service of a sixth part of a knight's fee and by ward of Easter castle ; he held a manor in Sussex of the earl of Warenne by the service of one knight; he held a manor in Hertfordshire of the king in chief by the serjeanty of finding a foot soldier for forty days; he held tenements in London of the king in chief by socage and could bequeath them as chattels '. So we must not think that each man fills but one place in the legal structure of feudalism. In a remote past this may have been so; but it is not so in the age that defines the various tenures. Often enough the same man who holds of the king in chief will hold also of other lords ; he will hold by knight's service, by ser- jeanty, in fee farm, in socage and in burgage. § 6. Homage and Fealty. Very generally the mere bond of tenure is complicated with Homage another bond, that of homage and fealty; the tenant either has done homage and sworn fealty, or is both entitled and compellable to perform these ceremonies. The right and the duty go together; in one particular case it may be the lord, in another it may be the tenant, who will desire that these rites should be observed, for each of them may thereby gain something. When we read what the law-books have to say of these Legal and . extra-legal matters we feel that they are dealing with institutions, the effects of real importance of which lies but partly within the field of law. The law of homage as administered, or even as tolerated, by the king's court of the thirteenth century is but a pale reflection of moral sentiments which still are strong but have been much stronger. Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage ; it is in this context that Glanvill introduces a word very rare in English legal documents, the antique word vassallus K The ceremony of homage is as solemn as ceremony can be. But when we ask for the effects of homage, we get on the one hand some rules of private law about warranty and so forth, 1 liiber de Antiquis Legibus, pp. Ixxi-lxxvi. ^ Glanvill, ix. 1. 27 S Tenure. [bk, ii. rules which may seem to us of no very great importance, and on the other hand some vague though impressive hints that these legal rules express but a small part of what is, or at least has been, the truth. The cere- The ceremony of homage (in some of the older books homi- homage. nium, hominatio\ but usually homagium) is much the same all Europe over^ According to Bracton the tenant puts his hands between the hands of the lord — this symbolical subjec- tion seems from the first to have been the very essence of the transaction' — and says "I become your man of the tenement that I hold of you and faith to you will bear of life and member and earthly worship (or, as some say, of body and chattels and earthly worship), and faith to you shall bear against all folk (some add, who can live and die) saving the faith that I owe to our lord the king."^ Britton adds that the lord shall then kiss his tenant^; Littleton adds that the lord sits, while the tenant kneels on both knees, ungirt and with his head uncovered ; and thgse we may accept as ancient traits °. Every- thing seems done to tell us that the man has come helpless to the lord and has been received into the lord's protection. The oath Homage is 'done,' fealty is 'sworn,' and it is worthy of observation that the oath is conceived as something less solemn than the symbolic act and can be exacted in many cases in which homage is not done. The tenant now stands up with his hand on the gospels and says ' Hear this my lord, I will bear faith to you of life and member, goods, chattels and earthly worship, so help me God and these holy gospels of God'; some add an express promise to do the service due for the tenement '. Bracton does not here add any saving clause for the faith due to the king ; but doubtless this was added I The oath of fealty thus omits the words ' I become your man,' a significant omission. Fealty, of course, is the Latin fidelitas; 1 D. B. i. 225 b : ' G. Episoopus olamat hominationem eorum.' * Waitz, Deutsche Verfassungsgesohichte, vi. 46; Warnkonig, Franzosisohe Bechtsgeschichte, ii. 357. ' Waitz, vi. 47. * Bracton, f. 80. Cf. Glauvill, ix. 1 ; Statutes of the Eealm, i. 227. ^ Britton, ii. 37. « Littleton, sec. 85. Compare the details from French books in Warnkonig, ii. 358. The man must be without arms, or spurs, or mantle. ' Bracton, f. 80. 8 Glanvill, ix. 1 ; Britton, ii. 39, 40. CH. I. § 6.] Homage and Fealty. 279 but it is interesting to notice that on manorial rolls written by clerks who were no great Latinists, the word becomes feodelitas or feoditas, so close is the connexion between faith and fee. The forms that have here been given are those of liege Liegeance. homage and of the fealty to be sworn to a liege lord. The word 'liege' seems to mean 'simple,' 'unconditional,' though very likely at a quite early time a false derivation from the Latin ligare, to bind, began to obscure this '■■ The man who has but one lord does him unconditioned homage. If now he acquires a fee from another lord, his homage must be con- ditioned, he must save the faith that he owes to his first lord ^ If tenements held of several lords descend to one heir, his liege homage seems due either to the lord from whom he claims his principal dwelling place — cuius residens et ligius est ^ — or to that lord who made the oldest of those feoffments under which he claims *. The person to whom liege homage is done is by no means necessarily the king; but the king has been insisting with ever greater success that there is a direct bond between him and every one of his subjects ; the growth of national feeling has favoured this claim °. Not only has he insisted that in every expression of homage or fealty to a mesne lord there shall.be a saving for the faith that is due to him*, but he has insisted that every male of the age of 1 See Skeat, Diet. s.v. liege ; Viollet, Histoire du droit civil franijais, p. 657. Comp. Waitz, D. V. G. vi. 42. In the thirteenth century there was another context in which the word was commonly used, viz. a donor is said to have made a gift in ligia potestate, i.e. he was unconstrained, had full power ; this phrase survived in Scots law in the form liege poustie; it is common in Braoton's Note Book, e.g. pi. 255, but is apt to degenerate into in legitima potestate. " Britton, ii. 37, 38. Statutes of the Eealm, i. 227. ^ Leg. Hen. Prim. 43, § 6 ; Glanvill, ix. i. Comp. Statutes of the Eealm, i. 227 : ' de qi il tient son chief mesuage. ' * Braoton, f. 79 b : 'feoffator primus propter primum feoffamentum. ' 5 Bound, Ancient Charters, p. 8 : Henry I. gives the lordship over certain tenants and expresses his will that all of them shall do liege homage to the donee 'in mea salva fidelitate.' Thus the general duty to be faithful to the king does not prevent homage to another being liege. Madox, Formulare, No. 298 : William Bloet enfeoffs a tenant ' pro suo homagio et ligeantia, salva fide Begis. ' ' See the proceedings against the bishop of Exeter, Co. Lit. 65 a. As to the similar measure of the Emperor Frederick I., see Waitz, vi. 46. The kings of the French after a struggle had for a while abandoned the attempt to insist on the insertion of these saving clauses ; Luchaire, Institutions monarchiques, ii. 27. 280 Tenure. [bk. II. Vassalism in the Leges Henrici. twelve years shall take an oath of fealty to him and his heirs, an oath ' to bear faith and loyalty of life and limb, of body and chattels and of earthly honour,' an oath which of course makes no reference to any tenement, an oath which promises a fealty so unconditioned that it becomes known as the oath of ligeance or allegiance {ligeantiay. William the Conqueror, it would seem, had exacted not only an oath of fealty but an act of homage from all the considerable tenants of his kingdom, no matter whose men they were, for so we may fairly construe the words of the chronicler, ' they bowed themselves and were this man's men'^; later kings as well as earlier had exacted the oath of fealty from their subjects in general. But this is a strong testimony to the force of vassalism. It suggests that an oath is necessary in order to constitute the relation between ruler and subject, it suggests that the mere omission of a saving clause might make it a man's duty to follow his lord even against the king, it makes the relation between king and subject look like a mere imitation of the relation between lord and vassal. This we can see even if we look back to the first days of incipient feudalism, ' All shall swear in the name of the Lord fealty to King Edmund as a man ought to be faithful to his lord''; the obligation of man to lord is better known, more strongly felt, than' the obligation of subject to king. At the accession of Edward I. the danger seems past, a.t least for a while ; the feudal force seems to have well-nigh spent itself, but obviously homage and fealty, liege Tiomage and liege fealty, have meant a great deal. In the Leges Henrici we may find passages which are the high-water-marks of English vassalism. Every man owes faith to his lord of life and limb and earthly worship, and must observe his lord's command in all that is honourable and proper, saving the faith due to God and the ruler of the land ; but theft, treason, murder, or anything that is against God and the catholic faith, such things are to be commanded to none, and done 1 Britton, i. 185 ; Fleta, 114. See Hale, P. C. i. 62-76. The idea that allegiance {ligeantia, ligeaunce) is due only to the king slowly gains ground. The same process went on in Prance ; ' the progress of monarchical power gave rise to the principle that liege homage can be done only to the sovereign'; Giraud, Bibl. de I'Eoole des ohartes, S§r. in., vol. iii. p. 4. 2 Chron. Sax. ann. 1086 ; Morenoe, ii. 19, speaks only of an oath of fealty ; but we are hardly in a position to contradict the Peterborough chronicler. ' Laws of Edmund, iii. § 1. CH. I. § 6. J Homage and Fealty. 281 by none; saving these, however, faith must ba kept to lords, more especially to one's liege lord, and without Hs consent one may have no other lord^- If the lord takes away his man's land or deserts him in mortal peril, he forfeits his lordship ; but the man must be long suffering, he must bear with his lord's mal- treatment of him for thirty days in war, for year and day in peace ^. Every one may aid his lord when attacked and obey him in all things lawful ; and so too the lord is bound to help his man with aid and counsel in all things, and may be his warrant — at least in certain cases — if he attacks or molests another'. To kill one's lord is compared to blasphemy against the Holy Ghost ; it is a crime to be punished by a death cruel enough to seem a fit beginning for the torments of hell^ If on the other hand the lord slays his man who has done no wrong, the offence can be paid for with moneys Bracton defines homage thus : — Homage is a bond of law Bracton on (vinculum iuris) by which one is holden and bound to warrant, °™*^®' defend and acquit the tenant in his seisin against all men, in return for a certain service {per certum servitium) named and expressed in the gift, and vice versa whereby the tenant is bound ' really' (re obligatur) to keep faith to his lord and do the due service ; and such is the connexion by homage between lord and tenant that the lord owes as much to the tenant as the tenant to the lord, save only reverence'. Such a definition tends to bring the whole matter within the legitimate province of the law of contract ; there is a bargain about a tenement ; the lessee is to do certain services, the lessor is to warrant the title. Warranty is still a very important matter, and the doing and receipt of homage still have some important results in the law about warranty ; though even here the courts are beginning to neglect homage and to lay stress merely on the relation which exists, whether homage has or has not been done, between a ^ Leg. Hen. Prim. 55, § 3, accepting the variant Deum for dominum. 2 Ibid. 43, § 8. ' Ibid. 82, § 3-6. In what cases the lord can warrant violence, is left an open question. * Ibid. 75, § 1. Apparently the traitor is to be flayed alive. ^ Ibid. 75, § 3. Compare the Norman law ; TrSs ancien ooutumier (Tardif), c. 35 ; if a lord kills his man he shall be punished by death ; if a man Mils his lord he shall be drawn and hanged, unless it be by misadventure, and even if it be by misadventure he shall be punished with death. 6 Bracton, f. 78 b. This is based on Glanvill, ix. 4. 282 Tenure. [bk. ii. feoffor and his feofifee. And, as Bracton here hints, the feoffee's obligation to perform the services is coming to be conceived much rather as the outcome of a 'real' contract than as an outcome of the act of homage. To this point we may return hereafter, since it lies within the domain of private law. What had been the public, the political or anti-political, force of homage may best be seen by comparing passages in the text- books which deal with the problems which may arise from the fact that a man may hold different tenements of different lords and that these lords may quarrel. Homage Such problems were possible even at the beginning of the war?'"^* * twelfth century, for a man might hold land of divers lords\ Glanvill, though he distinctly says that the tenant may have to fight against his lord at the king's command, says also that if a man has done divers homages for his divers fees to divers lords who ' infest ' each other, and if his chief lord orders him to go in his proper person against another of his lords, he must obey the command, 'saving the service to that other lord from the fee that he holds of him^.' This can hardly be read otherwise than as a statement that private warfare may conceivably be lawful. Bracton dealing with a like case uses more ambiguous words : — If enmities arise between his different lords, the tenant must in his proper person stand with him (stabit cum eo) to whom he has done ligeance, while he must stand with his other lords by attorney'- There is a great difference between Bracton's stare cum and Glanvill's ire contra ; Bracton's words may be satisfied by supposing a tenant bound to do suit to the courts of two lords who have quarrelled ; he must go in person to the one court, by attorney to the other. Or again we may suppose that the king calls out the feudal array ; the tenant himself must serve under the banner of his liege lord and send a substitute to represent him in the squadron of his other lord. In Britten's book indeed, or at least in some manuscripts thereof, it is said that the tenant maybave to serve one lord 'against the other^'; ' Leg. Hen. Prim. 43, § 6. ' Quotounque dominos aliquis habeat, vel quantumcunque de aliis tenet, ei magis obnoxiua est, et eius residens esse debet, cuius ligius est.' Cf. 55, § 2 ; 82, § 5. , 2 Glanvill, ix. 1. s Bracton, f. 79 b; Fleta, p. 207. •* Britton, ii. 41 : 'Si deus seignurs soint en destaunce, si covendra al tenaunt fere soen service a soen [seignur lige enoountre soeu autre] seignur en sa propre person et de fere soen service a soen autre seignur par attourn^.' The omission in some mss. of the words here printed within brackets is noteworthy. CH. I. § 6.J Homage and Fealty. 283 and we are hardly entitled to say that this doctrine even as a legal doctrine was of no avail. It is probable that even the king's courts would have held that the man was justified, or at least excused, in defending his lord and his lord's property against hostile attacks and such defence might easily become defensive warfare. The great case which proves that Edward I. had the will and the power to put down private war with a heavy hand, even when it was levied between the most powerful men of his realm, the case in which he sent an earl of Gloucester and an earl of Hereford to prison, proves also that in the eyes of contemporaries the full enormity of their offence was found in their having gone on with the war contrary to a royal prohibition, and that the morality of the time would hardly suffer any severe punishment to be inflicted upon those of their men who had followed their banners in ignorance of the king's command. Such persons if guilty of homicide, robbery, arson or the like, might doubtless be dealt with as common criminals, but for the mere fact that they had gone out with banner displayed, it would be hard to bring to bear upon them that prerogative procedure which was set in motion in order to crush the disobedient earls. At any rate private war was an offence which might be enormously exaggerated by breach of a royal prohibition ^ The same feeling may be seen in another quarter. That a Sanctity of lord should make an attack on his man, or a man on his lord even under the forms of law is scarcely to be tolerated. If the man will bring an appeal, a criminal charge, against his lord, he must first 'waive the tenement V When a king is going to ' Eot. Pari. i. 70-77. See especially p. 77. But Edward was playing the ' part of a king who is so strong that he can afford to be merciful. Orderic, iv. 167, in an important passage, points out the difference between England and Normandy. Under Henry I., Ivo of Grandmesnil 'guerram in Anglia coeperat et vicinorum rura suorum inoendio combusserat, quod in ilia regions crimen est inusitatum, nee sine gravi ultione fit expiatum.' The ordinary English criminal law is strong enough to suppress anything that we could fairly call private war ; just for this reason it is needless for Glanvill to say, as his Norman contemporary does, ' NuUus hominum audeat versus alium guerram facere'; Tr^s anoien ooutumier (Tardif), u. 31. He can even indulge in a speculation as to the vassal's duty of following one of his lords against another, for this must be read subject to the rules of criminal law which forbid homicide and the like. In France there arose a jurisprudence of privat? war, for which see VioUet, Btablissements, i. 180. 2 Bracton, f. 81 b, 141. 284 Tenure. [bk. ii. declare war upon his barons he first defies them, for there should be no attack while there is affiance. Henry III. in 1233 defied the Marshal, who then was no longer his man, but ' outside his homage'^ ; before the battle of Lewes he defied the earls of Leicester and Gloucester, who thereupon renounced homage and fealty^. We can hardly say that all this lies utterly outside the sphere of law, for rebellions and wars are conducted on quasi-legal principles — that is a characteristic of the time. Bracton fully admits that a man who holds land both in England and in France may be bound to aid both kings when they make war on each other ; his liege lord he must serve in person, but none the less he must discharge the service due to his other lord'. Homage But the most curious limitation to the force of vassalism °°y- will be found in the fact that the man can hardly ' go against ' any one at his lord's command without being guilty of the distinctively feudal crime, without being guilty of 'felony.' Common law, royal and national law, has, as it were, occupied the very citadel of feudalism. Whatever may be the etymology of the -word felony, there can be no doubt of this, that the word came to us from France, and that in France and elsewhere it covered only the specifically feudal crimes, those crimes which were breaches of the feudal nexus and which would work a forfeiture or escheat of the fief, or, as the case might be, of the lordship ; for the lord might be guilty of felony against his man just as the man might be guilty of felony against his lord. A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony ; there must be some breach of that faith and trust which ought to exist between lord and man. Now it would seem that for a while the word was used here as well as elsewhere in this restricted sense ; in the Leges Henrici felonia is one among many crimes^ But before the twelfth century is out it seems to cover every crime of any considerable gravity, and seems to have no reference whatever to the feudal bond save in one respect, namely, that the felon's land escheats to his lord ; nay, a charge oi felonia has become an 1 Mat. Par. Chron. Maj. iii. 249, 258. " Chron. T. Wykes, 149. Other ohroniolers notice this incident as im- portant. ' Bracton, f. 427 b. * Leg. Hen. Prim. 43, § 7 ; 46, § 3 ; 53, § 4. CH. I. § 6. J Homage and Fealty. 285 absolutely indispensable part of every charge of every crime which is to be punished by death or mutilation^ The details of this process are very obscure. Possibly the lords saw no great harm in a change which brought them abundant escheats ; but an attack had been made upon vassalism in its very centre. To be true to your lord when there was any real strain on the feudal bond, to go out with him when he ' went against ' some one else, would end, like enough, in your finding that you had committed a felony. This of course is no superficial change in the use of words ; it bears witness to a great change in thought and feeling. All the hatred and contempt which are behind the word felon are enlisted against the criminal, murderer, robber, thief, without reference to any breach of the bond of homage and fealty. Felony, then, that is to say any crime which judged by the Feudal medieval standard is a grave crime, is cause for an escheat. But * °°^' we can find traces of an older way of thinking. So late as 1225 William Blunt brought an action against Roger Gernon de- manding homage, relief and scutage ; Roger denied holding of the demandant and asserted that he held of William Briwere ; the demandant replied ' with words of felony ' — wickedly and in felony had Roger denied his service and done homage to another"- Such a use of the term felonia may have been belated, still felony in its more modern sense is not the only cause for an escheat. Glanvill speaks briefly: — the tenant will break the bond of homage if he does any thing that may turn to the disherison of his lord or the disgrace of his lord's person' Bracton's phrase is 'anything 'that may turn to the disherison of the lord or any other ' atrocious injury.' As a matter of fact we do not know from decided cases that any delict falling short of a ' felony ' in the modern sense of that term, and unconnected with the tenure of the land, would have been regarded by the king's courts of the thirteenth century as a cause of escheat ; but it would be rash to deny that the tenant might lose the land by reviling his lord, particularly if the lord kept a court and the tenant was duly 1 Select Pleas of the Crown, i. pi. 67 ; Braoton, f. 141, last line. " Note Book, pi. 1687. 3 Glanv. ix. 1 : ' Et generaliter nihil de iure facere poterit quia salva fide homagii quod vertslt ad. exheredatiouem domini sui vel ad dedecus corporis 286 Tenure. [bk. II. Homage, by whom done and received. forejudged the land by his peers ; and Bracton distinctly says that any violent laying of hands upon the lord will cause a loss of the tenements As to the dealings with the tenement which might work a disherison: — lord or tenant might well lose his rights in the land by disavowing the tenure. In Bracton's day this principle was becoming degraded into a mere rule of property law, one of the complicated mass of rules about warranty and so forth ; but we have just seen how in 1225 such a disavowal was still spoken of as a felony^ In other quarbers we may see that homage has been losing its meaning. It has been connected with military and noble tenure. According to Bracton it is due if the tenement is held by knight's service, even though it has to bear but one half- penny of scutage ; it is due also if the tenure be a serjeanty, at all events if the serjeanty be one that concerns the king; but it is not due from tenants in socage, though as a matter of fact such tenants sometimes do it ; if the tenure were villeinage, it would be dangerous to take the tenant's homage, as this might imply an enfranchisements Glanvill gives us an important clue when he says that a woman can not do, though she may receive homage^; in Bracton's day this is otherwise, a woman may well do homage'. Homage has implied a willingness to fight if need be, and even when it had become admitted that women might hold military fiefs — here in England they seem, as will be remarked hereafter, to have held them from the Conquest onwards — they could not say the words which im- ported an obligation to stand by the lord in war, to risk life itself in the lord's service". But all this was passing away and. ' Bracton, f. 81 b. Compare Glanvill, ix. 1, who seems to demand an intent to do grievous harm. The lord's power to proceed in his own court against the tenant is fully admitted by Glanvill. ^ Bracton, f. 81 b, gives a precedent of a writ of escheat grounded on a malicious disavowal by the tenant of the lord's title. The printed Registrum (see f. 164-5) does not contain any such writ, whence we may infer that it went out of use soon after Bracton's day. » Bracton, f. 77 b, 78, 79 b. * Glanv. ix. 1, 2. « Bracton, f. 78 b, § 4. " In after days, according to Littleton, § 87, when an unmarried woman does homage, she is to say ' I do to you homage,' not ' Jeo devieng vostre feme.' But in the days of real vassalism there would have been no talk of the latter formula ; the question would have been as to ' Jeo devieng vostre homme.' CH. I. § 6. J Homage and Fealty. 287 despite what Bracton says, it seems to have been common for the socage tenant to do homage^ The contract was far from being a one-sided one. The lord The lord's was bound to defend and warrant his gift. When we hear of ' warranty ' we are apt to think of a mere institute of private law common enough at the present day, the obligation of a seller to compensate the buyer if he be evicted by superior title, and the covenants for title expressed or implied in our modern purchase deeds appear as the representatives of the ancient warranty. But the primary obligation of the warrantor in old times was not that of making compensation ; his obligation to give his tenant a tenement equal in value to that whence he had been ejected was but a secondary obligation arising upon the breach of the primary obligation, namely, .the duty of defending the tenant in his possession ' against all men who can live and die.' If the tenant was attacked by process of law he vouched his lord, he called upon his lord to defend the action, and the lord if he did his duty defended it. Now here we see a great force at work. Do what we may to make all men equal before the law, a rich man has and must always have g^eat advantages in litigation ; he can command the best advice, the best advocacy. But in the middle ages the advantages of the rich and powerful must have been enormous. Happy then was the tenant who could say to any adverse claimant : — ' Sue me if you will, but remember that you will be attacking not me, but the earl or the abbot.' Such an answer would often enough be final. We must understand this if we are to understand the history of commendation. The owner of land who gives it up to a great man and takes it back to hold by rent and services receives a ' valuable consideration ' for the surrender and sub- mission. This is so even within the sphere of law and litigation ; he has made his hold upon the land secure, for he has at his back a warrantor whom no one will rashly sue. We must add that he has a lord who may use carnal weapons or let loose the thunders of the church in defence of his tenant^. 1 This seems to have been so even in the twelfth century ; see e.g. the Burton Cartulary, pp. 30-40. 2 Bound, Ancient Charters, p. 69 ; Geoffrey Trussel gives an advowson to a priory and adds ' and if any dispute arise about that church or the possession thereof, I will come to the aid of the monks to deraign what the church ought to hold, wheresoever it may be needful, to the best of my power, at their cost and upon a horse of theirs if I have not got my own." 288 Tenure. [bk. II. 7. Relief and Primer Seisin. The in- cidents of tenure. Heritable rights in land. The lord's rights can not be summed up by saying that he is entitled to service of one kind or another from his tenant. Blackstone in a well known passage enumerates ' seven fruits and consequences inseparably incident to the tenure in chivalry, viz. aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat'.' Of all of these we must speak, but we shall speak of them in a somewhat different order and in the course of our discussion we must point out how far they were peculiar to military tenure. In the thirteenth century the rights of a person who holds land are usually heritable rights ; when he dies the land will descend to his heir. We must not here speak at any length of the canons of inheritance ; it will be sufficient if we notice a few salient points. In the first place, the ' heir ' of English law is an essentially different person from the Roman ' heres' : — he never claims under a will. With few exceptions the broad rule holds good that no one can give rights in land by his will, and even in those cases in which such rights are thus given the person who gets them does not get them as ' hefr.' Only God, says Glanvill, can make an heir, not man^. A distinction between land and movables is thus established ; even when the dead man has not bequeathed his movables the heir as such has no claim to them. In the second place, one main rule of the law of inheritance is the primogenitary rule : — among males of equal degree only the eldest inherits. This rule has been gradually extending itself; once appropriate to the military tenures it is becoming the common law for all tenures. Women can inherit even though the tenure be military ; they are post- poned to males of equal degree ; several women of equal degree will share the inheritance between them, will be coheiresses, coheredes. Lastly, though the rights of a tenant of land are usually heritable, this is not always the case ; A may give land to B merely for his (B's) life ; on the death of this tenant for life there will be nothing for his heir ; the land will ' return' or ' revert' to A. But more, to make the rights of the donee Com. ii. 63. * Glanv. vii. 1. CH. I. § 7. J Relief and Primer Seisin. 289 heritable rights, the giver must use words which make this plain ; if he merely gives the land ' to B', then B will be but a tenant for life ; he must give it ' to 5 and his heirs\' But the heir, whom we will suppose to be of full age, does Reliefs, not come to his inheritance without having to pay for it; he has to pay to his lord — and this is what concerns us here — a relief (relemum or in earlier documents relevatio or relevamen). In Glanvill's day the relief for a knight's fee is fixed at 100s. ; for socage land it is one year's rent ; as to baronies and serjeanties, there is no settled rule ; the heir must make the best bargain that he can". The Dialogue on the Exchequer tells us that the relief for the knight's fee is 1 00s. ; that for the barony is in the king's discretion'. The grievance of excessive reliefs stood foreniiost amongst the grievances alleged by the barons in 1215; they asked that the heir should have his inheritance by ' the ancient relief,' which relief was to be defined by the charter. And by the charter of 1215 it was defined; the heir of an earl's barony was to pay £100, the heir of a baron's barony £100, the heir to a knight's fee 100s.'' This was repeated in the charters of 1216, 1217 and 1225 ; but at some time or another the relief for a baron's barony was reduced by one-third, namely, from £100 to 100 marks, and thus the notion that a barony consists of 13J knights' fees was engendered. The change, however and whenever it was intro- duced, was sanctioned by the charter of Edward I." Bracton states the law as to earldoms, baronies and knights' fees in its final form ; the relief for Serjeants is still in the discretion of the lords". As to socage, he seems to doubt whether anything that can properly be called a relief is payable ; for the lord has no wardship of the sokeman's heir, and in general relief and wardship are connected rights. However the heir has to make a certain payment (quaedam praestatio), namely, an additional 1 Note Book, pi. 964, 1235, 1811. In the more ancient charters the gift instead of being ' to X and his heirs ' is often a gift ' in feudum et hereditatem ' or 'hereditario iure possidendum. ' 2 Glanv. ix. o. 4. ° Dial. ii. e. 10, 24. * In 1229 on the death of Hugh Balliol his heir was charged with £150 for thirty fees ; afterwards however the relief was reduced and he paid as for a barony; Bxcerpta e Rot. Fin. i. 183, 212. ' See the facsimiles of the various charters in Stat, of the Realm, vol. i. ; and B^mont, Chartes des libert^s, pp. xxxi. 47. Bracton, f. 84 b. P. M. 19 290 Tenure. [bk. ii. year's rent. Then as to fee farm, Bracton says that no fixed rule has been established ; but a reasonable payment should be made, regard being had to the needs of the lord and the means of the tenants In Normandy the relief seems to have had much the same history. In the oldest statement of Norman law the reliefs of counts, barons and knights are mentioned but their amount is not defined, while tenements that are not held by military service are rated at 5 shillings for the capital messuage and 1 2 pence per acre for the land ^. A little later we read that baronies pay £100 and knights' fees £15°. As in England so in Normandy, a relief was payable by every heir even though he was the direct descendant of the dead tenant. This is noteworthy, for according to a very common French custom a relief was only exigible when the land descended to a collateral heir; but in France as in England we often find that one year's rent, or one year's profits, of the land, is deemed the due reliefs. ae^*V* "^"^ ^^^ amount of the due relief is not the only, perhaps on the not the most important, point that has been in debate. A death. tenant dies : his heir was living in the same house with him : his heir was not living on the tenement but at once presents himself: his heir has gone to the wars, or has gone on pilgrim- age : two claimants appear, each asserting that he is heir : a stranger intrudes himself into the tenement, setting up a claim as heir, or relying on some title adverse to the ancestor, or 1 Bract, f. 85 b, 86. In this passage fee farm is treated as distinct from socage ; by ' socage ' Bracton seems here to mean the tenure of the sokemen. See above p. 274. Britton, ii. 50, agrees that a relief is only due when the tenure is knight's service or grand serjeanty. So does the apocryphal statute De wardis et releviis ; Statutes of the Realm, i. 228. See also T.-B. 33-5 Edw. I. p. 351. However the additional year's rent payable for socage land was usually called a relief. Thus on the Fine Eolls of Bracton's day it is common to find a ' relief ' paid for socage land held of the king ; see Excerpta e Eot. Fin. i. 78, 97, 126, 154 ; but these are not payments from the king's ' sokemen ' : the sokemen would settle their affairs with the manorial bailiffs. Sometimes a charter of feoffment fixes a conventional relief, and burgage reliefs are sometimes fixed by the borough charter; see e.g. Eeg. Malmesb. ii. 34. ^ Tr^s ancien coutumier (ed. Tardif), c. 47. " Ibid. 0. 84 ; Ancienne contume (ed. de Grnohy), c. 34 ; Delisle, Biblioth6que de I'^cole des chartes, S^r. III. vol. ii. p. 99. The Norman pound is worth much less than the English. * D'Arbois de Jubainville, Biblioth. de 1' Nicole des chartes, S^r. III. vol. iii. pp. 139-142 ; Warnkonig, Eechtsgeschichte, ii. 363 ; Viollet, 6tablissements, i. 160-4. CH. I. § 7. J Relief and Primer Seisin. 291 simply relying on his strong right arm : — what in all these cases are the rights of the lord ? To simplify the question, What is the general notion of the lord's right — is he entitled to take the land and hold it until the true heir asks for the land, does homage and pays relief, or is he only entitled to receive the relief having no concern with the land ? There has been a conflict between inconsistent theories representing inconsistent interests. Already in Glanvill's day it is settled that if the heir is in seisin the lord ma,y not turn him out ; the heir may resist the lord. Still the lord is entitled to a certain recognition of the fact that though the tenement belongs to the tenant it belongs also to the lord ; he may enter and go through the ceremony of taking seisin, but he must do no damage \ Braeton repeats this ; in the case just put the lord may have ' a simple seisin' of the land which does not disturb the heir's seisin. But other cases must be discussed : — for example, at the ancestor's death the heir may be absent, the tenement left vacant ; in this case the lord may enter, and then the heir when he appears must not oust the lord by force ; if he does so, the lord will have an action against him and will be restored to possession. So again if there be two rival claimants of the inheritance neither of whom is yet in possession, the lord may enter and hold the land until one of the two has proved his rights We have to remember that if no heir appears, the tenement will belong to the lord for good and all ; we have also to remember that if there be a dispute between several would- be heirs, the lord's court is, at least ih theory, the proper tribunal for its decision, and the lord who takes homage from a pretender runs great risk in so doing ; he may have to warrant that pretender's seisin, unless he has been careful to declare that the homage is received without prejudice to the rights of other claimants. A conflict between two sets of proprietary rights, those of the lord and those of the tenant, is thus compli- cated by the lord's jurisdictional powers. In the struggle which precedes the Barons' War the grievances of the tenants who stand low in the feudal scale become audible ; and this is one chief grievance — on the tenant's death the lord enters the tenement and wastes it ; the heir can get no damages. An attempt to redress this grievance was made by the 1 Glanv. vii. 9 ; ix. 4. ^ Bract, t. 252-3. 19—2 292 Temire. [bk. ii. Provisions of 1259 ; a more successful attempt by the Statute of 1267 ; the heir is to have damages if the lord does any harm, for if the heir be forthcoming and in possession of the land, the lord is entitled to no more than ' a simple,' or as we should say a formal, ' seising' Preroga- But here as in many other cases the king is outside the of the king, common law. This is fully recognized by the Statute of Marlborough (1267)^ and made yet clearer by the document known as Praerogativa Kegis*. When a tenant in chief of the crown dies, the king's escheator seizes the land and holds an inquest as to who is next heir (mquisitio post mortem) ; not until the heir's right has been established by inquest, not until he has done homage and paid, or given security for, his relief, will he be put in seisin ; and if, impatient of delay, he puts himself in seisin, this will be a mere intrusion upon the king ; for the king is entitled to the primer seisin (prima seisinay. The machinery for enforcing this right seems to have been slowly perfected under Henry III. ; but there is no room for doubt that the right itself had been enforced, though perhaps with less regularity, at a much remoter time^ In the Pipe Koll of 1130 the reliefs that are mentioned are in some cases high^ and the payment of relief is spoken of as though it were a condition precedent to the enjoyment of the land'. 1 See the strikingly antifeudal passage in Braeton, f. 253 b ; Note Book, pi. 348, 1149 ; Petition of 1258 (Select Charters), cap. 1 ; Prov. Westm. e. 9 ; Stat. Marlb. e. 16 ; Britton, ii. 52 and note by Niohols. For a picturesque case of John's day, see Pleas of the Crown (Selden Soc), i. pp. 67-75. 2 Stat. Marl. o. 16. s statutes of the Eealm, i. 226. * In Bracton's day it was said by some that lords in general were entitled to primer seisin ; but Braeton, f. 252 b, thinks this an inaccurate phrase for the ' simple seisin ' to which the mesne lord is entitled is, not prior to, but con- current with, the seisin of the heir. " Glanvill, ix. 6 ; whenever the tenant of a barony dies the king seizes his land. For the history of the writ Diem claiisit extremum see Roberts, Excerpta e Eot. Fin. i. p. ix. The escheators do not become prominent until the later years of Henry III.'s reign. " Eot. Pip. p. 9, two hundred marks of silver and one mark of gold ; p. 67, two hundred marks of silver. ' The phrase often is ' pro terra patris sui ' ; p. 86, ' ut sit saisitus de terra patris sui' ; p. 36, 'ut filius suus hereditetur de terra W. avunculi sui' ; p. 106, ' Agnes... reddit eompotum de xl. s. ut fllii sui hereditentur de terra patris eorum.' It is even allowable to speak of the lord as making the son the heir to his father ; thus (temp. Hen. I.) the abbot of Abingdon 'fecit Henricnm filium Oini heredem de omnibus quae fuerunt patris sui ' ; Hist. Abingd. ii. 138. CH. I. § 7.J Relief and Primer Seisin. 293 We are thus brought within seventy years of the Conquest. Earlier As to what had happened in that interval, we have two em- reliefs, phatic declarations. Henry I. in his coronation charter said 'If any of my barons, earls or others, who hold of me shall die, his heir shall not redeem, or buy back {heres suus non redimet) his land, as he used to do in the time of my brother, but shall relieve it with a just and lawful relief; and in like wise the men of my barons shall relieve their lands from their lords by a just and lawful reliefs' In the second place the chronicler when telling how Rufus kept bishoprics and abbeys vacant and made profit out of their temporalities, adds that he desired to be the heir of every man in England hallowed or lay^ "We see then that there already was an idea of a just and lawful relief, that William Rufus had exceeded its measure, and had in effect required the heir to purchase his ancestor's land'. In order to discover what was the just and lawful relief, we naturally turn to the ' Leges " of the time, and we find that the compilers of them consider that the modern relief is but the ancient English heriot under a new name. We are told that the ancient heriot (heregeatu, military Relief and apparel) had at one time consisted of the horses and arms lent by the lord to his man which on the man's death were re- turned to the lord. In the laws of Cnut it is said that if by negligence or in consequence of sudden death any one quits this life intestate, the lord shall take no more of his property than his rightful heriot ; the heriot of an earl is eight horses, four saddled and four unsaddled, four helms, four hauberks, eight spears, as many shields, four swords and 200 mancusses of gold ; that of a king's immediate thegn {cyninges Ipegenes ]>e him nyhste syndon) is four horses, two swords, four spears, as many shields, helm, hauberk and 50 mancusses of gold ; that for a mediate thegn (medemra ]>egna) a horse and harness, his weapons, and a sum of money *. If a man falls before his lord in battle, no heriot is to be demanded ^ We see from this and from other evidence that it was expected of the thegn that he 1 Charter of Hen. I. u. 2. ' A. S. Chron. ann. 1100. ' See the curious story in Monast. i. 165. Under William II. the heirs of a man who has entered religion find that they cannot obtain his land without paying heavily, ' erant enim illis diebus consuetudines regis gravissimae ' ; so they commend themselves and their land to Bishop Gundulf of Eoohester, who lends them money. < Cnut, ii. 70, 71. ^ Cnut, ii. 78. 294 Tenure. [bk. il. would make provision for the heriot in his will. Now it is very likely that for a long time before William's landing the old theory had ceased to describe the actual facts ; the lord no longer provided armour for his dependent warriors ; he gave them land instead, and very possibly the horses, arras and money rendered to the lord on his man's death were by this time considered as a due to be paid by the heir in respect of the land. At all events the Normans had no difficulty in regard- ing the heriot as a relief On the first page of Domesday Book we read how when a Kentish alodiarius dies the king has the relevationem terrae except on the lands of certain great lords'. In Berkshire when a king's own thegn or knight died he used to leave as a relief to the king all his arms and one saddled and one unsaddled horse'. In Nottinghamshire a thegn who has more than six manors, pays £8 for the relief of his land to the king; if he has but six or fewer, he pays 3 marks to the sheriff'; a similar rule prevailed in Yorkshire ^ But the most instructive entry is that which concerns the English (as opposed to the French) burgesses of Hereford. When a burgess who did service on horseback died, the king used to have his horse and arms ; from one who had no horse the king had either 10 shillings or his land with the houses. If he died without a will the king had all his movables {pecu- niamy. Probably if we could now unravel the knot of the old English land tenures we should find that several different 'death duties ' — to use a large phrase — proceeding from very different principles were becoming intermixed and consolidated, and that this process was hastened by the Norman Conquest. However it is on the basis of Cnut's law about heriots that the compilers of the Leges attempt to construct a law of reliefs. The Leges Henrici define the relevationes of the earl, the king's thegn and the mediate thegn (mediocris thayni) by translating the words of Cnut °. The bilingual Leges Willelmi follow the same model, but add that the relief of the villein is his best beast, and that the relief of him who holds land at a yearly rent is one year's renf. Passing by for the moment this mention of the agricultural classes, we seem entitled to the inference 1 D. B. i. 1. ' Ibid. i. 56 b. 3 Ibid. 280 b. * Ibid. 298 b. " Ibid. i. 179 ; Bee the Batoe page for the moneyer's relevamentum. « Leg. Hen. o. 14. ' Leg. Will. Conq. i. c. 20. CH. I. § 7.] Relief and Primer Seisin. 295 that Cnut's law appeared as the only measure by which the 'just and lawful relief of Henry's charter could be determined. Of any competing Norman measure we hear nothing. In Normandy as in England the relief sometimes consisted of the dead man's armour, and was therefore, in the oldest sense of the word, a'heriot". But that Henry observed, or promised to observe Cnut's law, we may not infer ; its terms were fast becoming obsolete. Perhaps he considered, and was justified by Norman law in considering, that, at least in the case of earldoms and baronies, there was no fixed rule. The reliefs mentioned in the one Pipe Roll of his reign that has come down to us suggest that he allowed himself a liberal discretion and paid little regard to the antique rules about heriots. We are thus led to the question whether the followers Heritabi- of the Conqueror who received great gifts of English land held ^the Cmi- those lands heritably. It is certain that they did so ; but this '^^^I^'^ affirmative answer may requii-e qualification and the difficulty of the question should be seen. As a matter of fact their heirs in some cases succeeded them, and we even find women suc- ceeding to baronies and military fees. This was so, we say, in some cases. But the number of tenures existing at a later day that can be traced back to the Conqueror's reign by an unbroken thread of inheritance might very easily be exagge- rated. The great honours were frequently falling into the king's hand by way of escheat. True, that in all or most cases, the cause why the heir did not inherit may have been the treason or felony of his ancestor, or something that the king chose to treat as such^ But this practical precariousness of tenure would check the formation -of a law of inheritance applicable to military fees, and we have to remember that new canons of inheritance, primogenitary canons, were being evolved; primogeniture was a new thing in England, perhaps it was not a very old thing in Normandy ; near the end of the twelfth century both in England and in Normandy some of the most elementary points in the new system were still unsettled ^ ' Bed Book, ii. 647 : of the knights of the bishop of Bayeux it is written : ' Et unuBCtuisque mUes debet feodum suum relevare de morte patris sui per xv. libras Bothomagensis monetae vel per equum et loricam.' Of. Bouquet, xxiii. 701. 2 In Normandy before the Conquest disherison seems to have been a pretty common event and to have given the duke much land of which he could dispose. See above p. 48. 2 This point will be discussed in our chapter on Inheritance. 296 Tenure. [bk. ii. Any uncertainty about the rules of descent would give an opening for the king's interference*. Add to this that the line between office and property is long an uncertain fluc- tuating line. Are the earldoms, the counties, comitatus, to be hereditary; are the sheriffdoms, the vice-counties, vice-comi- tatus, to be hereditary; is the comes to be the successor of the ancient ealdorman; is the sheriff to be like the Norman viscount"? And what of the new castles that the king has erected ? The very caput honoris is it not a royal fortress ? Any reminiscence bf precarious beneficia that was latent in Norman law would assuredly bear fruit when such questions as these had to be answered, answered by a conquering king who was building up a kingdom for himself and his heirs. No doubt his followers believed that they obtained hereditary estates — though we do not know that they had any warrant on parchment for this belief. But they knew that their heirs would have to relieve their lands ; what would be the measure and conditions of the relief, time would show. Mesne And as with the king so with the mesne lords. The abbot heritable of Abingdon soon after the Conquest enfeoffed knights to fill the places of the thegns who fell at Hastings, regardless of any rights that the heirs of those thegns might have. Perhaps they were disinherited on the score of what was accounted the felony of their ancestors. This however is not the defence relied on by the chronicler of the abbey, who was not without patriotic feeling ; the thegns, he thinks, had little enough right to the possession of lands that had been given to the church. Then in the days of Rufus one of the uew knights died leaving three daughters; the abbot of the day stoutly denied that there had been any hereditary feoffment, and at last would 1 Thus when the father had lands or 'honours' both in Normandy and England and left several sons there was a problem to be solved. It is thus that Orderio, ii. 405, speaks of the death of William FitzOsberu : ' Guillelmus Bex eius honorem filiis eius distribuit, Guillelmo Bretolium totamque patris posses- sionem in Normannia, et Eogerio Herfordensem oomitatum.' See also iii. 427 and 455 as to the Beaumont and Graudmesnil inheritances. Even in much later days any doubt about the rules of inheritance brought profit to the king ; see as to the Mandeville inheritance, Bound, Ancient Charters, p. 97, and as to the Bnckland inheritance, Note Book, pi. 12. = See Stubbs, Const. Hist. i. 295, 390. Dr Stubbs has to take Orderic to task for not observing distinctions. May we not infer that these distinctions were not very obvious? fees. CH. I. § 7.] Relief and Primer Seisin. 297 only admit the heiresses and their husbands as tenants for life on their abjuring all heritable rights'. Dare we say that the abbot was obviously in the wrong ? A historian of law may easily credit his characters with too much foresight ; the truth is that men gave lands and took lands and left the terms of the tenure to be decided thereafter by the course of events and their own strong wills ^ And so the feoda of the Norman reigns are indubitably hereditary, the very word is beginning to imply, even if it does not already clearly imply, heritability ; but the lord has rights and to define them is difficult. The past history of the precaria which became beneficia, the bene- ficia which became /eoda, the evolution of primogenitary rules, the conquest of England and consequent clash of laws, the ever renewed 'treasons' and 'felonies' perpetrated by the barons, all tended to keep the matter in uncertainty, and when finally the king's rights emerge into clear daylight, they are large ; the heir of the baron must make the best bargain that he can. To ascribe the law of reliefs and primer seisins to the covetous- ness of Rufus and the cunning of Flambard is to look only at the surface. The heriot is not suppressed by the relief, though in course History of of time it undergoes a transformation. Glanvill tells us that ^ ^"^ ' the free man who makes a will is bound to ' recognise ' his lord with the best and principal thing that he has and then to ' recognise ' the church K Bracton repeats this ; the lord should have the best chattel, the church the second best, or the third best, or it may be the church is entitled to nothing, for customs vary^. This will remind us of the gifts of arms and money made to the king by his thegns in the old days with a request that their wills may be allowed 'to stand.' Elsewhere Bracton calls these testamentary gifts to the lords 'heriots'; he tells us that the lord gets them by grace rather than by right, that they are regulated by local customs, that they do not touch the inheritance and that they must not be compared with reliefs. Britton adds that in general they 1 Hist. Abingd. ii. 35. ' Early in the twelfth century the abbot of Burton grants land to one Orm ; the charter provides that on Orm's death his son shall have the land on paying ' pro relevatione ipsius terrae tantum pecuniae quantum nobilis homo dare debet pro tali terra ' ; Burton Cart. p. 30. 8 Glanv. vii. 5. * Bract, f. 60. 298 Tenure. [bk. ii. are paid rather by villeins than by free-men \ Turning to manorial surveys, we find it among the commonest of customs that when a tenant in villeinage dies, the lord shall have his best beast; sometimes a similar due is taken from the goods of the dead freeholder, and it is to these customary dues that the name ' heriot ' permanently attaches itself. Occasion- ally we still hear of the freeholder's horse and armour going to his lord, but far more commonly the tenement that is burdened by a heriot is a peasant's holding and the lord gets the best ox, and in this case the term heriot must in the eyes of the etymologist be inappropriate". We may guess that in the heriot of the later middle ages no less than four ancient elements have met : — (1) the warrior who has received arms from his lord should on his death return them ; (2) the peasant who has received the stock on his farm from his lord should return it, and if his representatives are allowed to keep it, they must recognise the lord's right to the whole by yielding up one article and that the best; (3) all the chattels of a serf in strictness of law belong to his lord and the lord takes the best of them to manifest his right ; (4) in the infancy of testa- mentary power it has been prudent, if not necessary, that the would-be testator, however high his rank, should purchase from the king or some other lord that favour and warranty without which his bequests will hardly 'stand.' But at any rate in course of time the heriot is separated from the relief Belief on If a relief is payable when the original tenant dies and his deathi^ ^ 'ifiir takes up the inheritance, should not a similar payment be made when the original lord dies? We are told that in the early days of the beneficium the death of either party to the contract put an end to the tenancy, and on the continent the new lord on succeeding to his ancestor could often exact a payment from the tenant ' A remarkable document has come down to us in which William Rufus fixes the relevamen which is to be paid to him by the knights of the episcopal barony of Worcester; Hugh de Lacy is to pay £20, Gilbert FitzTurold 100 shillings, the Abbot of Evesham £30, and so forth. The occasion of the relief seems this, that the bishop of 1 Brtuit. f. 86 ; Fleta, p. 212 ; Britt. ii. 51. ^ Vinogradoff, Villainage, p. 161. ° Schroder, D. B. G., 388; Crerman feudists distinguish the two cases as Mannsfall and Hermfall. CH. I. § 8. ] Wardship and Marriage. 299 Worcester is dead and Rufus chooses to regard himself as the successor of St Wulfstan, since the temporalities of the see are in his hand ; ' for he would be the heir of every man whether hallowed or lay ' '. This we may well regard as an act of oppression, but the legal excuse for it probably is that a relief is due from the tenants to their new lord. Of such pay- ments we do not hear much more under the name of reliefs, but in Normandy one of the regular ' aids ' payable to the lord was an aid towards helping him to pay his own relief; half the relief that he had to pay he might obtain from his tenants by way of aid^. In England we do not reckon this among the regular aids, but Glanvill distinctly sanctions the lord's claim', and we may see that the new bishop or abbot often expected that his knights and other tenants would ' recognise ' him handsomely when he entered into possession of his tem- poralities *. § 8. Wardship and Marriage. Of great and growing importance as men grow wealthier Wardship and begin to traffic in all manner of rights, are the rights of the marriage, lord to wardship (custodia, warda) and marriage (maritagium), and these have been among the chief causes of that classification of tenures which has come before us. In Bracton's day they had reached their full stature. Their Bracton's nature may be illustrated by a simple case. A tenant, who has but one tenement, and who holds it by knight's service or military serjeanty' of a mesne lord, dies leaving as heir a son who is under the age of twenty-one years. The lord will have the wardship of the land until the heir attains that age or dies without having attained it. He will take the rents and profits of the tenement for his own use, but ought thereout to provide 1 Heming, Cart. p. 79 ; Bound, Bng. Hist. Bev. viii. 20. 2 Tr^s ancien coutumier (Tardif), o. 47-8. ' Glanv. ix. 8. * Thus in 1182 the newly-made abbot Samson demanded an aid from his knights, and being dissatisfied with what they offered, took occasion to pay them out for their illiberality ; Jocelin of Brakelond, p. 20. The Bishop of Ely in Edward I.'s day attempts to exact a recognition of this sort from his free- holders : Y.-B. 33-5 Edw. I., pp. 135, 139. 6 Bracton, f. 35 b ; Note Book, pi. 758. 300 Tenure. [bk. ii. for the youth's maintenance and pay the dead man's debts^ ; he must not commit waste ; if he does so he forfeits the wardship". But besides the wardship of the land, he will be entitled to the wardship of the body of the heir ; if the heir escapes from his custody, if another takes the heir from his custody, this is a wrong to him ; by legal process he can compel the restoration of the heir's body'. But further, as guardian of the heir's body he is entitled to the boy's 'marriage'; he can sell him in marriage*; but the marriage must not be a disparaging one'. The law does not go so far as to actively constrain the ward to marry the mate provided by the guardian, nor does it even declare null a marriage solemnized without the lord's consent, though we have a hint that early in Henry III.'s reign such a marriage might not have all those legal results that a marriage usually has^. The maxim was admitted, strange as this may seem to us, that ' marriages should be free',' and the church would neither have solemnized nor annulled a sacrament at the bidding of the lay tribunals. Still if the ward mamed without the lord's consent, he wronged the lord, and so did any one who took part in procuring such a marriage'. Without making any great change in the substantive law, the Statute of Merton (1236) defined the lord's right by giving him new and efficient remedies : — the current of legislation had in this instance set in his favour. Wardship If the heir was a woman, the lord's right of wardship was heir™* ^ much the same ; but whether the wardship of a woman was to endure until she attained the age of twenty-one, or was to cease when she attained the age of fourteen, seems to have been a 1 Glanv. vii. 9 ; Bract, f. 87. The duty of paying debts is gradually shifted from the heir to the executor. ' Note Book, pi. 485, 717, 1840. 3 Note Book, pi. 256, 349, 812, 1131, cases before Stat. Merton. In pi. 1608 we find that it might be dangerous for an abbess to receive a young lady as a nun. * Sometimes even in pleadings this is frankly stated; 'Adam dioit...qnod vendidit ei predictam Emmam cum terra sua ' ; Note Book, pi. 270. 5 Charter of 1215, c. 6 ; Stat. Mert. o. 7 ; Petition of 1258, c. 6. ' In Note Book, pi. 965, it is suggested that a woman, who has married a ward without his lord's consent, ought not to have dower. 7 Braoton, f. 89, quotes this maxim, 'Libera debent esse eoniugia.' * Note Book, pi. 1286, Quare permisit se maritari after the Statute ; pi. 1280, Quare maritavit after the Statute ; pi. 1090, 1596, QiMre dweit in uxorem against husband of ward before the Statute ; pi. 1278, the same after the Statute. CH. I. § 8.] Wardship and Marriage. 301 moot point'. Marriage with her lord's consent put an end to the wardship of a woman. But according to old law, which Bracton regarded as still in force, no woman holding by military service could lawfully marry without her lord's consent, and even a father holding by military service could not in his lifetime lawfully give his daughter in marriage without his lord's consent". This right the king at all events rigorously enforces over widows who hold of him in chief; to marry such a widow without the king's licence is a grave offence*. The lord's rights, it will be understood, were proof against any claim on the part of even the nearest of kin ; the heir fell into the lord's hands even though his mother was alive. An apparent exception existed when the heir inherited from his mother while his father was living : but this was hardly an exception, for in this case the father, according to an opinion that was gradually prevailing, continued in possession of his late wife's land, not as guardian of the heir, but in his own right*. If the dead man held by knight's service or military Priority serjeanty of several different mesne lords, each of them got the lords, wardship of the tenement that was holden of him. As to which of them should have the wardship of the heir's body and with it the right of marriage, there was intricate law ; the general rule traced back the titles under which the dead man held the various tenements and preferred that lord from whom, or from whose ancestors, the most ancient of those titles was derived ; that lord would usually have been, not merely the dead man's lord, but his liege lord=. If the dead man held his one tenement in socage, burgage. What or fee farm or by a non-military serjeanty, his lord had no right give ward- to wardship or marriage ; such was the general rule. As a ^''^P- matter of fact however we find socage tenure subjected to these burdens. This seems to have been the case throughout the bishop of Winchester's barony'; the dean and chapter of 1 Bracton, f. 86 b. As the text now stands we are left in some doubt about Bracton's own opinion. In later times the law was found in Stat. Westm. i. c. 22. =* Glanv. vii. 12 ; Bract, f. 88. ' See e.g. Excerpta e Eot. Fin. ii. 149. * Note Book, pi. 266 ; Bract, f. 89 b. » Note Book, pi. 661, 868, 906 ; Bract, f. 89 b. 6 Bracton, f. 85 b, 88 ; ' in episcopatu Wintoniae ' probably means here not the diocese but the barony of the bishop. 302 Tenure. [bk. ii. Hereford claimed wardship of the heirs of all their freehold tenants'; the archbishop of Canterbury, the prior of Christ Church, the monks of Dover claimed the same right over the heirs of their gavelkinders^ This Bracton regarded as an abuse, though one that might be sanctioned by prescription'. The ordinary rule was that the guardianship both of the land and of the child should go to the nearest of those relations who could have no hope of inheriting the land. Thus, in the common case, when the dead tenant in socage left a son and a widow, the widow would have the wardship of her son and of his land ; she would be ' guardian in socage,' for she never could be his heir. To state the main upshot of the rule — maternal kinsfolk have the wardship of a paternal inheritance, paternal kinsfolk of a maternal inheritance^. When the heir attained his fifteenth year, guardianship in socage came to an end". If the dead man held one tenement by knight's service, another by socage, the wardship of the one would belong to its lord, that of the other to a kinsman of the heir ; while as to the wardship of the heir's body and his marriage, these would belong to the lord of whom he held by military tenure*. Preroga- Once more we see the king above the common rules'. If ship. the dead man held in chief of the crown by knight's service or by grand serjeanty, the king was entitled to the wardship of the heir's body and to his marriage, no matter how many other lords there might be, and no regard being had to the relative antiquity of the various titles by which the tenements were holden ; no one can compete with the king. But further, the king was entitled to the wardship of all the lands which this dead man held, no matter of whom he held them. Such was the right of ' prerogative wardship,' and a section in the Great Charter had been necessary to keep it within these spacious bounds", necessary to exclude the king from a prerogative wardship even when the tenement holden in chief of the crown was holden in socage, burgage, fee farm or by a petty serjeanty, and necessary to exclude him from a prerogative wardship when the dead man, though a tenant in chief of the king, held not ' as 1 Note Book, pi. 990. ^ jjot, Hund. i. 202-231. ' Bracton, f. 85 b. * Bracton, f. 87 b. 6 Glanv. vii. 9 ; Bracton, f. 86 b. « Bracton, f. 88. 7 Glanv. vii. 10 ; Bracton, f. 87 b ; Note Book, pi. 743, 908, 1221, 1280. 8 Charter of 1215, co. 37, 43. CH. I. § 8.] Wardship and Marriage. 303 of the crown' but 'as of an honour' which was temporarily or permanently in the king's hands. The defeat of this latter claim it is that chiefly serves to establish a difference between tenure ut de corona and tenure ut de honore^. The guardian's rights in the person, in the marriage, in the The lord's lands of the heir are regarded as property ; they are saleable, "fndMe. assignable rights; large sums are paid for the wardships and marriages of wealthy heirs^ ; indeed so thoroughly proprietary and pecuniary are these rights that they can be disposed of by will ; they pass like chattels to the guardian's executors'. In Bracton's day no distinction in this respect seems drawn between the guardian in chivalry and the guardian in socage. Neither one nor the other need account to the heir for the profits of the land ; the one like the other can sell the ward's marriage'. This was so until the eve of the Barons' War, when one of the Provisions of Westminster, afterwards confirmed by the Statute of Marlborough, laid down the rule that the guardian in socage must, when the heir has attained majority, account to him or her for the profits of the land, and is not to give or sell the ward in marriage save to the profit of the ward^ This should be had in mind if we are to understand the rights of the guardian in chivalry; the morality of the twelfth century saw nothing shameful in the sale of a marriage, the law of the time looked upon guardianship as a profitable right and would hardly have had the means of compelling a guardian to render accovmts, even if it had wished to do so°. One small point remains to be mentioned. It is the law Wardship and tie serjean- ties. 1 See above, p. 261. 2 Geoffrey de MandevUle promises John 20,000 marks for the Countess of Gloucester and her land : Eot. Obi. p. 520. ' The treatment of a wardship as a chattel can be traced to the early years of Heniy III.; Excerpta e Eot. Fin. i. 163, 177, 230, 234. * Braoton, f . 89 : ' Si autem cum heres infra aetatem extiterit et sub custodia parentum de sokagio, propinquior oonsanguineus eum maritare potent sine alicuius iniuria vel aliis vendere maritagium.' « Prov. Westm. (1259), c. 12; Stat. Marlb. (1267), c. 17. * Coke, 2 lust. 135, regards the chapter of the Statute of Marlborough about guardianship in socage as a ' declaration of the common law ' ; but he did not know the Provisions of Westminster and has no warrant for his doctrine. An action of account was a very new action in 1259. Events seem to have taken the same course in Germany; the guardian is gradually made accountable; a profitable right, tutela usufructuaria, is turned into a trust ; Schroder, D. B. G., p. 695. 304 Tenure. [bk. ii. about wardships and marriages that gradually divides the serjeanties into two classes, known as ' grand ' and ' petty.' In the Great Charter John was forced to say that he would claim no prerogative wardship in respect of ' any small serjeanty such as that of supplying us with knives or arrows or the like'.' The term ' small serjeanty' seems one which is not yet technical, and the nature of those serjeanties which are too trivial to justify the royal claim is indicated in the rudest manner. In Bracton's day one opinion would have applied a merely pecu- niary test ; a great serjeanty is one that is worth 100 shillings*; but gradually a different line seems to have been drawn ; the tenant by grand serjeanty is one who must do his service in person and his service must not consist of a mere render". Another and a different question was whether tenure by serjeanty of a mesne lord would give the lord wardship and marriage. Here also a line had to be drawn, but where it should be drawn was a question between Raleigh and Segrave. The 'rodknight's' serjeanty of riding with his lord, will this give wardship and marriage ? Raleigh decided that it would ; Segrave dissented. Bracton seems inclined to hold that the lord's rights only arise when the serjeanty is one which concerns the defence of the realm*. The law in Looking back from Bracton to Glanvill we see but little change. In his treatment of these matters Bracton has but revised and expanded his forerunner's text°. The Statute of Merton has at a few points given a sharper edge to the lord's rights; the Great Charter has suppressed some abuses which had grown up under Richard and John, in the main abuses of the prerogatival rights. To speak of the English lords as groaning under the burdens of wardship and marriage is hardly permissible'; we do not hear their groans. In the days of their power, in 1215 and in 1258, they had little to suggest; it was enough that the heir's land" should not be wasted, that » Charter of 1215, e. 37. i* Bracton, f. 87 b. 5 Note Book, pi. 743, 1183, 1231, 1270, 1280. * Bracton, f. 35 b, 87 b ; Note Book, pi. 758. " Beeves, Hist. Engl. Law, ed. 1814, i. 284, has noticed this. " Freeman, William Eufus, i. 335 : ' burthens and exactions under which Englishmen and pre-eminently the rich and noble among Englishmen groaned for not much less than six hundred years after Plambard's day.' Glanvill. CH. I. § 8.] Wardship and Marriage. 305 wards should not be married below their station'. Certainly there was at one time a tradition that in or about the year 1222 ' the magnates of England granted to King Henry the wardship of their heirs and of their lands, which was the beginning of many evils in England'.' This story however has- not been traced beyond chronicles which in this context must be styled modern, and as it is absolutely certain that the king's right to wardship was very much older than Henry III.'s day, we may well doubt whether there is even a grain of truth in the tale'- Much more important is it for us to notice with many recent writers that Glanvill says nothing about the lord's right to the marriage of a male ward; he speaks only of the marriages of women. This is a remarkable fact, but we can not adopt the popular opinion that this new right, if new we must call it, ' was based simply on a strained construction of the general word heredes in a section of Magna Carta*.' We can trace the sale of the marriages of boys back to a very few years after Glanvill's death; in 1193 the bishop of Ely, William Longchamp, for 220 marks buys from the king the wardship of Stephen Beauchamp and the right to marry him wherever he may please'. Such transactions are common enough throughout the reigns of Richard and John. Archbishop Hubert gives 4,000 marks for the wardship and marriage of Robert Stuteville, though the king reserves a certain veto on the choice of a bride'. If two men who have filled the office of chief justiciar break the law, where shall we look for those who keep it ? We must suspect that under Henry II. the sale of the male ward's marriage was a growing practice. As to earlier days, the one extant Pipe Roll of Henry I.'s reign, shows us the king selling wardships', i Articles of the Barons, c. 3, 27 ; Charter of 1215, c. 4, 5, 6, 37 ; Petition of 1258, c. 2, a. = Higden, Polyohron. viii. 202 ; Ohron. de Melsa, i. 448. ' Selden, Notes on Fortescue, cap. 44. * Digby, Hist, of Eeal Property, ch. m. sec. i. § 3 ; Blackstone, Com. ii. 71. » Madox, Bxoh. i. 323-5. " Eot. Cart. 108 ; see also ibid. 27, 48, 104, 116, 120. See Hardy's Intro- duction to the Oblate and Fine Eolls, p. xxxvi. ' Pipe Boll, e.g. p. 37, 'pro oustodia terrae "W. donee heres suus possit terram tenere '; p. 66, 'Uxor Walteri filii Goduini^t Bobertus frater Goduini... ut habeant in custodia terrain et pueros ipsius Walteri ' ; p. 83, ' pro custodia filii W. de D. cum terra sua.' In 1121 Henry I. grants ' Sibilla daughter of Bernard of NeufmareW and her land ' to Miles of Gloucester ; Bound, Ancient Charters, p. 8. P. M. 20 306 Tenure. [bk. ii. and selling the marriages of women' ; it seems to show that even the male ward could not marry without his lord's consents Earlier Then however in our backward progress we come to the remarkable declaration of Henry I. in his Coronation Charter : — ' If any of my barons or other men wishes to give his daughter, or sister, or niece, or cousin in marriage, let him speak with me; but I will neither take anything of his for the licence, nor will I forbid him to give her away, unless it be to an enemy of mine. And if on the death of one of my barons or other men he leaves a daughter as heir, I will give her with her land by the counsel of my barons. If he leaves a widow, who is without children, she shall have her dower and marriage portion and I will not give her in marriage against her will. If she has children, she shall have her dower and marriage portion while she remains chaste, and I will not give her unless with her consent. And the wife or some other relative who has the best claim shall be guardian of the land and of the children. And I bid my barons keep within the same bounds as regards the sons, daughters and wives of their men'.' That Henry made these promises is certain, that he broke them is equally certain ; but here again, as in the matter of reliefs, the question arises whether his promises represent the old law as it stood before the tyranny of Rufus and Flambard, or whether he is buying support by relaxations of ancient rules. The question is a very difficult one, for of the Conqueror's practice we know little and of the Norman law of the eleventh century we know, if that be possible, less. ilw™*" ^^ ^^'^^'^ ^^y^' Norman law and English law agree ; they agree even in some of the minuter details of prerogative wardship, for as in England no lord can compete with the king, so in Normandy none can compete with the duke. Perhaps under French dominion some of the worst character- ' Pipe EoU, e.g. p. 8, ' ut ducat in uxorem sororem Ilberti de Laoi ' ; p. 43, 'pro Cecilia filia Alani...cum dote et maritagio suo'; p. 66, 'pro terra et filia E. de C. ad opus Hugonis nepotis sui ' ; p. 81, ' pro uxore Eduardi de Sarpsbiria] cum terra sua ad opus Pagani filii sui ' ; p. 92, ' ut mater sua duoeret virum ad eleotum suum'; p. 136, 'pro uxore W. F. cum dote sua'; p. 96, 'ne capiat virum nisi quern voluerit.' ' Ibid. p. 8, ' ut Bex conoedat ei ducere uxorem ' ; p. 26, ' nt ducat uxorem ad Telle suum.' 3 Charter of Hen. I. o. 3, 4. CH. I. § 8.] Wardship and Marriage. 307 istics of the Anglo-Norman law were mitigated. In Glanvill's day the rule- that a ward might not lawfully marry without the lord's consent was applied in Normandy to male as well as to female wards ; in later statements of the rule we hear only of female wards'. From a Norman lawyer, a contemporary of our own Glanvill, we have, what no English lawyer gives us, namely, a defence of the law, and a curious defence it is : — ' A fatherless heir must be in ward to some one. Who shall be his guardian ? His mother ? No. Why not ? She will take another husband and have sons by him, and they, greedy of the heritage, will slay their first-born brother, or the step-father will slay his step-son. Who then shall be the guardian ? The child's blood relations ? No. Why not ? Lest, thirsting for his heritage, they destroy him. For the prevention of such faithless cruelty, it is established that the boy be in ward to one who was bound to his father by the tie of homage. And who is such a one? The lord of the land who never can inherit that land in demesne ; for heirs of a noble race always have many heirs. Besides they should be brought up in good houses and honourably educated. Those who are brought up in their lords' houses are the apter to serve their lords faithfully and love them in truth; and the lords can not look with hatred on those whom they have reared, but will love them and faithfully guard their woods and tenements and apply the profits of their land to their advancement.' As to prerogative .wardship, the duke, who is bound to rule all his people, is more especially bound to have a care for the orphan'' That this quaint apology is mere nonsense we are not S.^® ^ r oj Normim entitle Bracton, f. 21 b. 5 Charter, 1217, e. 4S. One is not to enfeoff a religious house and then take back the land as tenant of that house. The mischief to be prevented seems to be this : — Some favoured religious bodies, e.g. the Templars, have royal charters which by general words set free all the lands that they now have, or shall hereafter acquire, from many burdens, e.g. suit of court. A gives land to such a house, and then becomes that house's tenant, and as such he claims immunity under /the charter. ' Petition of Barons, o. 10. ' Proyisions, cap. 14. CH. I. § 9.] Restraints on Alienation. 315 influential enough with the king, who was enjoying his own again, to put off the evil day. But not for long, for in 1279 the Statute De Viris Religiosis\ after referring to the Pro- visions of Westminster as though they were or had been law ^, put a stop to alienations in mortmain. No religious persons were to acquire land ; if they did so, the land was to be for- feited to the lord, and he had a brief term given him for taking advantage of the forfeiture ; if he failed to do so, the lord next above him in the feudal scale had a similar opportunity ; and so on up to the king. The statute does not merely condemn gifts in frankalmoin ; the religious are not to acquire more lands, even though they are willing to pay full rents for them. However the king and the other lords, if any, whose interests were concerned could bind themselves to take no advantage of the statute, and licences to acquire land in mortmain were somewhat easily obtained. (5) From a comparatively early date we learn that ser- Alienation jeanties were inalienable. Already in 1198 the itinerant ties, justices were directed to make inquest touching the king's serjeanties ". In 1205 John ordered an inquest as to the serjeanties, thegnages, drengages and other services and lands of the honour of Lancaster, which honour was then in his hands ; the sheriffs were to seize all such as had been alienated since the coronation of Henry II. without licence from the king or other good warrant*. This claim was steadily main- tained by Henry III.° Towards the middle of his reign it was enforced with retrospective rigour; Robert Passelew was sent through England to ' arrent ' the alienated serjeanties, that is to say, to change the tenure from serjeanty into knight's service or socage. One instance out of a very large number will serve to show what was done. Walter Devenish held land by the ser- jeanty of finding three arrows when the king should hunt on Dartmoor; he had alienated parts of the tenement to sub- tenants , his services were now changed into a rent of three 1 Stat. 7 Edw. I. 2 The reference is not, as commonly supposed, to the Charter of 1217 ; it is a recital of one of the Provisions of 1259. These Provisions were unknown to our classical commentators. 3 Hoveden, iv. 62. •• Eot. CI. i. 55 ; Abbrev. Placit. p. 48 (Bedf.) = Eot. CI. ii. 38 ; Note Book, pi. 1665 ; Bracton, f. 396. immediate tenants. 316 Tenure. [bk. ii. shillings, one-third of which was to be paid to him by his sub- tenants ^ That very many of the king's tenants by serjeanty had alienated parts of their tenements by way of subinfeudation is an instructive fact ; we may learn from it that a restraint on alienation might exist in theory and yet be much disregarded in practice. Our evidence chiefly concerns serjeanties held of the king; but we may guess that other lords thought that a similar rule might be applied to their Serjeants, and the ser<- jeants of the honour of Lancaster, whose alienations John attacked, were not tenants in chief of the crown. Special law (6) Bracton nowhere says that any special restriction is king's imposed on the tenants in chief of the crown ; the utmost that he does is to suggest, and this not very definitely, that the Charter of 1217 has been construed favourably to the king. The tenant in chief by knight's service of the king may not make a gift in frankalmoin, or a feoffment which reserves a less service than that due to the king^ But the king's claim grows louder with every repetition. The apocryphal Statute De Praerogativa Regis, which may represent the practice of the earlier years of Edward I., says that no one who holds of the king in chief by knight's service, may without the king's licence alienate the greater part of his land so that the residue is not sufficient to do the service, ' but this is not wont to be understood of members or parcels of the said lands.' It adds that the king has been accustomed to set to rent (arentare) serjeanties that have been alienated'. In 1290 a petitioner says that the king has a prerogative that those who hold of him in chief can not give or alienate their lands without his licence ; certainly they can not alienate all that they so hold*. Britton states that earls, barons, knights and Serjeants who hold of the king in chief can not without his licence alienate their fees, but the king may eject the purchasers, no matter how ancient the alienation, since time does not run against the king°- Fleta states broadly that no tenements held of the king can be given without his assents This becomes the law of after ' Testa de Nevill, 197. The whole book is full of information about the arrentation of serjeanties. * Bracton, f. 169 b. The passage as it stands is not very plain. See also f. 395. ' As to the date of this document, see Engl. Hist. Eeview, vi. 367. " Calend. Geneal. 415. <> Britton, i. 222. « Fleta, 178. CH. I. § 9.] Restraints on Alienation. 317 times. Before the end of Edward's reign both theory and practice draw a marked distinction between the king and other lords, and the king is making a considerable revenue out of licences to alienate and fines for alienations effected without licenced (7) The growth of the royal right may be traced also in Growth of the articles delivered to the itinerant justices. Already in rogative Richard's reign they are to inquire ' of the king's serjeanties, "^ *" who has them, and through whom, and how much, and what they are worths' A similar inquiry is found among the articles of Henry III.'s reign ; but, though there were divers other inquiries about royal rights, wardships, escheats and the like, there seems to have been none as yet into alienations of lands not held by serjeanty'. But in or about 1254 a special commission was issued^, which was a forerunner of the more famous Quo Waranto inquiry of Edward I.'s reign, and among the articles, besides that about serjeanties, there seems to have been one ' of knights, freeholders, men of religion or others, holding land on the king's demesne by gift or sale of the sokemen or by provision of the warden or bailiffs,' and another ' of men of religion who have entered the king's fee so that the king loses wards, reliefs and tallage^' The right asserted is growing more ample. Far more sweeping yet were the inquiries issued in 1274 soon after Edward's accession : — ' of the fees of the king and of his tenants, who now holds of him in chief, and how many fees each holds, and what fees were wont to be holden of the king in chief but now are held through a mesne lord (per medium), and what mesne lord, and when they were alienated, and how and by whom".' This inquiry becomes one of the usual articles of the eyre, and as such it is given by Fleta and Britton' ; it formed one of the Nova Capitula which were distinguished from the more ancient articles. The gradual appearance of such an inquiry, if it does not fully prove that the law was growing more severe, at least suggests that the king was beginning to take an interest in the subject of alienation such as had not been taken in the past'. 1 See Eot. Orig. Abbrev. e.g. 126 ; see also X.-B. 33-5 Edw. I. 306. ' Hoveden, iv. 62. 3 Braoton, f. 116 b ; Cart. Glouo. ii. 276 ; Ann. Burton. 330, a.d. 1254. " Eot. Hund. i. Introduction and p. 20. ^ Eot. Hund. i. 20-34. 6 Eot. Hund. i. Introduction. ' Fleta, pp. 25, 26 ; Britton, i. 71. 8 See also the writ preserved in Eeg. St Osmund, ii. 86. 318 Tenure. [bk. ii. Quia (8) The famous statute of 1290, the Quia Emptores emp 01 es. jr^^^^^^^i^ j-^g Qutsids our Hmits, but a word must be said of it. It declared that every free man might sell his tenement or any part of it, but so that the feoffee should hold of the same lord and by the same services, of v?hom and by which the feoffor held. In case a part only was sold, the services were to be apportioned between the part sold and the part retained according to their quantities ; this apportionment was binding on the lord. The statute is a compromise ; the great lords had to concede to their tenants a full liberty of alienation by way of substitution — substitution even of many tenants for one tenant — and thus incur a danger of losing their services by the process of apportionment; on the other hand subinfeudation with its consequent depreciation of the escheats, wardships and marriages was stopped. Nothing was said about the king's rights and no one seems to have imagined for one moment that the tenants in chief of the crown were set free to alienate without royal licence ; on the contrary, — and this is the curious part of the story, — it is just at the very moment when all other tenants are gaining perfect freedom, that the king's claim to restrain any and every alienation by his tenants in chief attains its full amplitude in the pages of Britton and Fleta^ Disputed (9) What was the legal basis of this prerogative right? the'pre'- Already in the middle of the fourteenth century the lawyers ririft*"^* had no certain answer for this question. Their speculations about it are of interest, though sometimes obscured and vitiated by the belief that the Praerogativa Regis was a statute. Already in Edward II.'s day it was clear that the royal claims were too extensive to be covered by the clause in the Charter of 1217. In 1325 complaint was made in parliament that the rule applicable to tenants in chief of the crown was being extended to tenants who held of honours which had fallen into the king's hands ; the king acknowledged the distinction ; as regards the latter he had only such rights as were given to all lords by the Charter'. In 1327 a statute was required to settle that on an alienation without licence the king was entitled only to a 1 Stat. 18 Edw. I. " To treat this measure as having been passed in the interest of the great lords seems a mistake. The one person who had all to gain and nothing to lose by the new law was the king. ^ Eot. Pari. i. 430. CH. I. § 9. J Restraints on Alienation. 319 reasonable fine and not to a forfeiture of the land'. In 1341 it was suggested in court that before the thirtieth year of Henry III. a tenant in chief might alienate without licence''. In 1346 it was asserted and denied by pleaders that before the twentieth year of Henry III. a tenant in chief of the crown could alienate like any other tenant. The reporter apparently has his doubts and tells us to consider the date of the Praeroga- tiva Regis'. In 1352 the question was discussed whether in Henry III.'s reign the tenant in chief could subinfeudate with- out licence, and apparently the decision was to the effect that he could^. In 1355 the lawyers are still arguing as to whether something happened in the twentieth year of Henry III. to prevent the tenant in chief from subinfeudating'. Why do they single out the twentieth or thirtieth year (1235-6, 1245-6) of Henry III. as a critical year ? To say with Coke' that in the twentieth (or rather in the following) year Magna Carta was confirmed, is not satisfactory; the same might be said of so many years, and the Magna Carta of the lawyers' statute books was the charter of 9 Henry III. (1225), confirmed by Edward I. To say that they referred the Praerogativa Regis to the twentieth or thirtieth year of Henry seems impossible, since that enigmatical document mentions King Edward. Perhaps the stress laid on this moment of time is but an accident due to the facts of the particular cases that were before the courts. The discussion, however, was taken up in parliament, and there the king's right was treated as the outcome of the Praerogativa Regis, and was said to have had its beginning in the reign of King Edward I.' A declaration of the law was demanded; but the king desired further infor- mation. The question was of practical importance, for it came to this : — Could the king attack a possessor of land on the ground of an alienation made without licence in the days of his great-grandfather — or, more generally, was there any limit of time that could be set to this prerogative right ? In 1360 a statute confirmed all subinfeudations made by the tenants in chief under Henry III. and earlier kings'. As we can hardly 1 Stat. 1 Edw. III. c. 12. 2 Y.-B. Pasoh. 15 Edw. III. (ed. Pike), pp. 167-8. 3 Lib. Ass. f. 73, ann. 20, pi. 17 ; see also Fitz. Abr. Avowre, 126. ■i Lib. Ass. f. 124, ann. 26, pi. 37. " Lib. Ass. f. 160, ann. 29, pi. 19. « 2nd Inst. 66 ; Co. Lit. 43 a. ' Bot. Pari. ii. 265. 8 Stat. 34 Edw. III. o. 15. 320 Tenure. [bk. ii. believe that Edward IIT. gave up any right to which he considered himself justly entitled, we may infer that the result of repeated discussions in the courts and in parliament was to date the change in the law touching alienation at the accession of Edward I., and this agrees with the conclusion that we should draw from other evidence : — somewhere about that time a claim that was justified by, if not founded on, the Charter of 1217 was magnified into a claim to avoid every alienation effected without licence^. The exact date of the change can hardly be assigned because in truth it was a gradual change ; but while writs bidding the sheriffs seize lands which have been alienated without licence appear upon the very earliest Fine Rolls of Edward I., we have in vain sought for any similar writs upon some of the last Fine Rolls of Henry III.^ Summary On the whole then we may be inclined to accept Coke's after the theory of this episode ; we may hold that the only restraint date of the on the alienation of tenements held of mesne lords that existed Charter. k i ■ • i after the year 1217 was the somewhat vague restraint imposed or defined by the charter of that year ; that apart from this, the tenant might alienate the whole or any part of the land by way of subinfeudation' and the whole, though perhaps not a part of it, by waj' of substitution ; that the king's prerogative right gradually grew out of the right allowed to all lords by the charter, though it exceeded the words of the charter and did not reach its full stature until the accession of Edward I. or thereabouts. But as to an earlier period, there is much to be said on the other side ; there are the once fashionable arguments drawn from ' the learning of feuds,' while more solid arguments may be derived from English and Norman deeds. Older law. As regards 'the original constitution of feuds' little need here be said : it was an old story long before the battle of Hastings. Very generally the continental vassal could not substitute a new vassal for himself without his lord's consent ; ^ In 1412 Hankford J. said that in Henry III.'s time a tenant in chief of the crown might have alienated as freely as any other tenant ; T.-B. 14 Hen. IV. f. 4 (Mich. pi. 6). 2 Fine EoU, 1 Edw. I. m. 9 ; the sheriff of Sussex is ordered to seize tene- ments which Franco de Bohnn a tenant in chief by barony has sold without licence to Almaric de Lucy. For other instances see the same roll, m. 16 m. 22, Boll of 3 Edw. I. m. 15, m. 21, EoU of 5 Edw. I. m. 5. See also the discussions in Y.-B. 32-3 Edw. I. p. 38 ; 33-5 Edw. I. pp. 306, 470. OH. I. § 9.] Restraints on Alienation. 321 but commonly he had some power of subinfeudation'. Wherever we look in the twelfth century we see differences of practice, and in some cases the law is becoming more favourable to the lords, less favourable to the tenantsl In this instance however we have no need to look beyond England and Normandy. For the period between 1066 and 1217 we have hundreds upon hundreds of English charters, and at first sight they seem to go Anglo- the full length of proving that from the Conquest onward no charters, tenant could alienate his land without his lord's consent. It so happens also that in Normandy we can trace this restraint on alienation back to the time when the duke of the Normans was not yet king of the English'. The chronicle of Orderic is full of gifts made to the Abbey of St Evroul, and in case after case the chronicler is careful to tell us how the gift was confirmed by the donor's lord or lords; in seeking confirmation the monks ascend the scale of tenure and do not stop until they reach the duke^ Then after the Conquest they acquire lands in England ; for instance they acquire lands from some of the men of the earl of Chester ; they seek the earl's confirmation and the king's. The abbot journeys to England and obtains from the Conqueror a liberal charter confirming the gifts and confirmations of his barons^ This is no solitary phenomenon. Every collection of monastic charters tells the same tale. No gift is considered safe until it has been confirmed by the king and all who stand between the king and the donor°- Often the donor's lord joins in the gift itself; it is made 'aanuente domino meo,' 'concedente domino meo' ; still more often he confirms it after it has been made. What is more he sometimes confirms prospectively whatever gifts any of his men may make to the favoured monastery. For a while we do not hear much of money being 1 Waitz, Verfassungsgesohichte, vi. 67-9. 2 See the law ascribed to Conrad II. in Pertz, Leges, ii. 38 and the Consti- tatio Lotharii, ibid. 84. The Lombard feudists of the twelfth century seem to have held that in the past the vassal had enjoyed a greater liberty than was left to him by modern ordinances ; Lib. Feud. i. xiii ; ii. ix ; ii. xxxiv, §§ 2, 3. For France, see Luchaire, Manuel des institutions franQaises, 171. * See above, p. 46. * Orderic, ii. 15 fol. See also Oartulaire de I'abbaye de la Sainte Trinity du Mont de Bouen, passim. 5 Orderic, iii. 18, 26. « For Norman instances see Orderic's chronicle ; English instances are to be found everywhere. E, M. 21 322 Tenure. [bk. ii. paid for such confirmations, lands are plentiful and lords are pious; but already in Henry I.'s day men are paying for confirmations \ and now and again we hear stories which seem to show that a lord would sometimes call in question a feoffment to which he had not consented^. '^'th"°^'™ But considerable care is necessary in drawing inferences charters, from these documents. Most of the very early charters that we possess relate to gifts in frankalmoin and when examined they will often appear to be confirmations and something more. In royal confirmations in particular it is common to find words that are not merely confirmatory. Sometimes the king denounces a penalty, a forfeiture of £10, against any who shall disturb the donees ; often he wills that the donees may enjoy ' sake and soke' and other liberties, which, at least in his opinion, none but he can grant. Then again, words which look merely confirmatory, demand a careful criticism. For instance if B holds of A by knight's service and enfeoffs the abbot of G in tree alms, then when A confirms the gift we must be diligent to observe whether he reserves his right to exact the service from the land, or uses words importing that the land is to be frankalmoin, not merely as between B and the abbot, but even as regards the confirmer himself Thus, to take a real example, when Robert earl of Gloucester confirms a gift which one of his ' Pipe EoU, 31 Hen. I. ; fines are paid, p. 34, ' pro ooncessione terrae quam H. de L. ei dedit ' ; p. 45, ' pro concessione terrarum quas episcopus ei dedit ' j p. 73, ' ut habeat terram quam abbas de B. ei dedit ' ; p. 91, ' pro concessione terrae quam tenet de H. filio E. ' ; p. 96, ' pro concessione terrae de qua E. de B. eum hereditavit ' ; p. 105, ' ut rex firmet in cartha eoolesiae suae de A. omnes res quas comes de Warwic ei dedit ad opus eiusdem eoolesiae'; p. 108, 'pro con- cessione terrae. ..quam comes de Warwic ei dedit." To judge from the later Pipe Bolls, it would seem as if the king for a while abandoned the attempt to make a steady revenue out of his confirmations ; but we may not be entitled to this inference. Chron. de Melsa, i. 221, the archbishop of York oirc. 1190 takes 60 marks for confirming a tenant's gift. 2 For very early cases see Hist. Abingd. ii. 7, 8, 9. The abbot gives land to Eobert of Oiley, but repenting himself is able to get back the land because the king has not confirmed the gift. Then he bought Nuneham from Leofwine and, since the Conqueror was in Normandy, procured and paid for the assent of Odo of Bayeux who was acting as regent ; but he lost his money, for the king having quarrelled with Odo gave the land to another. Eufus peremptorily forbids the abbot of Eamsey to alienate any part of his demesne ' without my licence ' ; Cart. Eams. i. 234. In John's reign licences to mortgage become common ; Rot. Pat. 1, 3, 4, 7, 59. See also the mandate in favour of the bishop of Ely, Eot. Pat. 47. OH. I. § 9.] Restraints on Alienation. 323 tenants has made to St Peter's Abbey, he adds ' I will that the said monks hold the same freely, quietly and honourably in frankalmoin for ever\' Such words, which are very commonly found, will in all likelihood debar the earl and his heirs from ever exacting any service from this land. Indeed in Bracton's day a lord confirming a tenant's gift had to be extremely cautious if he wished to retain the service due from the land ; if 5 who held of J. at a rent of a hundred shillings enfeoffed G at a rent of one shilling, the mere word confirmo used by A might, if unexplained, deprive him of ninety-nine shillings a year^ Again, at least in Norman documents; there is much to suggest that a subinfeudation effected without the lord's consent was neither void nor yet voidable by the lord so long as the mesne seignory of the donor endured ; the donee's danger lay in this, that by the donor's felony or want of heirs this seignory would escheat and the donor's lord would then be able to avoid the gifb*. Again, we must remark that in this context little stress can be laid on confirmations when the confirmer is the king, for, quite apart from all feudal theory, a royal charter was a very efficient protection against litigation. When once such a charter was produced by the person in possession, the king's justices would stay their hands ; they would proceed no further rege inconsulto*. We fiad too that religious houses are not ' Cart. Glouc. i. 319; ii. 89. See the confirmation by Earl Bichard of Chester in Hist. Abingd. ii. 69. ^ Bracton, f. 21 b. The passage is an ' addicio.' 3 See e.g. Orderie, ii. 449, a lord -confirms Ms man's gift to the abbey and adds that if the man by any crime shall lose his fee (feiidum) the church is still to keep the land that has been given to it. See also Tr4s ancien coutumier (Tardif ) c. 89. This view of the matter seems to have become of great import- ance in the history of Scottish law; see Boss, Lectures on Conveyancing, ii. 251-3. * Bracton, f. 382 b. In 1251 this had become a grievous obstacle to the course of justice, and an ordinance was made to the effect that a royal charter of confirmation should not stay the action, unless the charter was so worded that the king would be bound to give an exchange to the donee in case of his being evicted. At least from John's reign onwards royal confirmations were usually so framed that the king was not bound to give an exchange. He would be so bound if he simply confirmed 'the gift of A.B.,' but he was not so bound if he confirmed ' the reasonable (i.e. lawful) gift of A. B.' ; in the latter case he only confirmed the gift in so far as it was no wrong to any one. For this rule see Bract, f. 59 b, and see Bot. Cart. p. 79, where it is noted that by special order of King John the word ' rationabiliter ' was omitted from a charter of confir- mation. As to the special value of royal charters even in the worst days of the French kingship, see Luchaire, Institutions monarohiques, i. 117. 21—2 324 Tenure. [bk. ii. content with one royal confirmation; they obtain a fresh charter from each successive king, for, be the law what it may, no prudent man will trust to the king's respect for his ancestor's promises. Lastly, to complete the picture, we may add that the usual practice of the monasteries was, not to apply to th-e king whenever they received a gift, but to wait until they had a considerable number of gifts and then get them confirmed by a single instrument. Condu- In the teeth however of the long series of diplomata sions as to . ^ r^ • the law of Stretching back to the Conquest, and in Normandy beyond the man time. Conquest, some of which deal with cases in which the donee is a layman and the confirming lord is not the king, it is quite impossible for us to hold that the restriction expressed in the charter of 1217 was a new thing, or that the free alienability of the fee simple is the starting point of English law ; we must be content with a laxer principle, with some such idea as this, that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts, but not unreasonable. The reasonableness of the gift would perhaps be a matter for the lord's court; the tenant would be entitled to the judgment of his peers. The charter of 1217 is a fair, though a vague compromise of conflicting claims. That it should have been so favourable to the tenants as it was, may fairly surprise us, if we have regard to other countries, and to the extreme severity of our English law about reliefs, primer seisins, wardships and marriages^. But the Norman Conquest must for a while have favoured ' free trade in land.' William, when he conferred the forfeited estates of English earls and thegns on his French followers, must have known and intended that there should be some reasonable amount of subinfeudation; this was absolutely required by the new military system ; the count or baron was to have knights to follow his banner, and the services of knights could only be secured by feoffments. For a long time it would be possible for the vassals > The French seigneur, who did not usually get a relief from the heir, if the heir was a descendant of the dead man, did very generally receive a fine when the tenement was alienated, under such names as 'loda et ventes,' 'quint et requint ' ; also he had the ' retrait f^odal ' or right of repurchasing within a certain limited time the land sold by his tenant at the price given for it. For Normandy see Tr6s ancien coutumier (Tardif) c. 57, 89-91 ; Anoienne coutume (de Gruohy) c. 29 ; on the face of these texts Norman law seems to grow more favourable to the lords during the thirteenth century. CH. I. § 9.] Restraints on Alienation. 325 to endow sub-vassals, for the sub-vassals to endow other sub- vassals, without any loss being inflicted on the great lords or on the king. We must add to this that for a full century after the Conquest, despite occasional quarrels, the king was in close league with the church ; as against his too rebellious barons he relied on bhe prelates, and the prelates of course desired that men should be free to make gifts to pious uses. And just when the interests of the church as an acquirer of land were begin- ning to come into serious conflict with the needs of the state, the function of declaring the law of England was being com- mitted to a group of professional lawyers who for several reasons were likely to favour free alienation. Often they were ecclesiastics ; always they were the king's servants, and as such inclined to loosen the feudal bond whenever this could be done without prejudice to their master's rights. But, besides all this, it seems clear that merely as jurists, and all considerations of political expediency apart, they were disposed to concede to every tenant the fullest possible power of dealing with his land. Just when they were deciding that the common law put no restriction on this power in favour of the lord, they were rapidly and finally destroying the restrictions which had existed in favour of the tenant's expectant heirs. This process will come before us hereafter, but should be noticed in this context. If the English lawyers are shutting their ears to the claims of the lords, they are shutting their ears to the claims of the kindred also, and this just at a time when in Normandy and other countries the claims of the lord and the claims of the expectant heir are finding a formal recognition in the new jurisprudence. Whether we ascribe this result to the precocious maturity of our system of royal justice, or to some cause deep seated in our national character, we must look at these two facts together : — if the English law knows no retrait fdodal, it knows no retrait Ugnager. As regards the form that alienation took, subinfeudation Usual form was certainly much commoner than substitution. Still we find tion. the latter at a comparatively early date, if not in charters, at least in fines levied before the king's court. Not unfrequently in John's reign one party to the transaction grants a tenement to the other party to hold ' of the chief lords of the fee'.' It is 1 Fines, ed. Hunter, i. 32, 54, 110, 115, 123, 188, 239 ; ii. 59. 326 Tenure,. [bk. II. General summary as to alienation by the tenant. not always possible for us to discover the real meaning of such a transaction, as we can not always tell whether the fine is the settlement of a genuine dispute, or a mere piece of conveyancing machinery ; but at all events it seems clear that fines were levied with little, if any, regard for the lord's interest, and that their effect often was to give him a new immediate tenant of the whole, or even (for so it would seem) of part only of the tenement. As regards modes of conveyance less solemn than a fine, had it not been for Bracton's distinct assertion, we should probably have come to the opinion that a new tenant, even of the whole tenement, could not be forced upon an unwilling lord. Whether we look to collections of charters or to collections of pleadings we find the lord's consent frequently mentioned'; indeed sometimes the transaction takes the form of a surrender by the old tenant to the lord and a feoffment by the lord of the new tenant. When about the middle of the twelfth century Reginald Puer sells land to Whitby Abbey he resigns all his right into the hand of Roger Mowbray to the use (od opj^) of the monks, to whom Roger gives it, putting them in seisin by the same rod {lignum) by which the resignation had been made". When Alexander Buddicombe sells that fifth part of a knight's fee which he holds of Hawise Gurney to Thomas Fitz- William, he 'demises himself in Ha wise's court and renders the land to her by the branch of a tree, whereupon she gives seisin to Thomas by the same branch'. Still there are Bracton's plain words : — albeit the tenant has done homage (and this of course makes the case an extreme one) he may put a new tenant in his place, and the lord must accept him, will he, nill he^. To sum up the whole of a lengthy argument, the sound conclusion seems to be that, in treating the matter as one of purely English history, we must start not from the absolute inalienability of ' the fief,' nor from the absolute alienability of 'the fee simple,' but from something much less satisfactory, an indeterminate right of the lord to prevent alienations which would seriously impair his interests, a right which might 1 Note Book, 627, 779, 947, 984, 1616, 1924. 2 Whitby Cart. i. 203. ■'* Madox, Formulare, p. 54. So T. de G. and his wife having sold land to the abbot of Meaux surrender it by the rod to the earl of Albemarle in his court (a.d. 1160-1182), Chron. de Melsa, i. 165, 224. ' Braoton, f. 81. OH. I. § 9. J Restraints on Alienation. 327 remain in abeyance so long as there was plenty of scope for subinfeudation and the liberty of endowing churches was not abused, a right on which the king's court was seldom if ever called upon to pronounce, since the lord could enforce it in his own court, a right which was at length defined, though in loose terms, by the charter of 1217. But very probably the king's legal position was from the first exceptional, and it certainly became exceptional in the course of the thirteenth century ; with no text of law to rely upon but the charter, he succeeded, under stress of pecuniary troubles, in gradually establishing a right which could not be justified by the terms of that instrument. That we may be right in taking as the starting point of our Gifts made law principles so vague as those just stated, may appear from wUh the this, that if we often find a lord confirming his tenants' gifts, M^court*!* we sometimes find a lord consulting or professing to consult his tenants before he himself makes a feoffment. When Aubrey de Vere gives land to the Abbey of Abingdon, ' all his knights' are said to join in the grant^ ; Earl Hugh of Chester speaks with ' his barons' before he makes a similar gifb^ ; Roger de Merlay when he endows Newminster does so with the consent of ' his men'^ ; ' the knights' and the ' good men' of the abbot of Abingdon give their consent to an exchange which he is making with one of his tenants*, and so the abbot of Ramsey by the counsel of his barons retains the homage of Robert Foliot at the cost of two thousand eels a year°. Each feudal group strives to be a little state; its ruler and his subjects alike have an interest in all that concerns its territory. Still this notion, that the lord ought to hold a parliament before he makes a feoffment, never hardens into law. But now another question arises, Can a lord dispose of his Alienation rights over a tenant and his tenement without that tenant's seignory. consent ? We will suppose that A has enfeoffed B who has enfeoffed G, and ask whether B can without O's concurrence, either put X in his {B's) place, so that G will hold of X who will hold of A, or place X between himself and G, so that G will hold of X, who will hold of B, who will hold oiA. Now here we 1 Hist. Abingd. ii. 59-60. '" Hist. Abingd. ii. 20. ' Newminster Cartul. p. 2. * Hist. Abingd. ii. 136. 5 Cart. Earns, i. 153. 328 Tenure. [bk. ii. have to consider two different difficulties. First there is what we may call the feudal difficulty, that of giving G a new lord, of holding him bound to serve X when he has contracted to serve B. Secondly there is a difficulty that is quite unconnected with the nature of the feudal bond but may be thus stated : — every gift, every transfer of rights, involves a transfer of seisin, that is of possession; when a tenant is to be enfeoffed as a tenant in demesne, then in order to complete the transfer it is absolutely necessary that the feoffor should deliver possession of the land to the feoffee, and this act is performed on the land ; the feoffor solemnly puts the feoffee in seisin and then quits the land; but there can be no such delivery of possession in the case that is under our notice ; G is tenant in demesne, it is not intended that X shall become tenant in demesne ; B and X have no business to go onto the land and disturb G in his possession ; what is to be given to X is not the right to take the fruits of the land but the right to G's services. We can not in this place discuss this notion that a gift or a transfer of rights involves a transfer of possession ; but it is deeply engrained in the law of the thirteenth century. It would seem then, that the only mode in which B can complete his gift to X, is by persuading or compelling G to recognise X as his lord. When such a recognition has taken place, then we may say that X possesses the object of the transfer ; he is seised of G's services, he is also seised of the land 'in service' (seisitus in servitio). The two difficulties then, though in a given case they may conspire, are essentially different ; the difference is brought out by the question — has B any legal process for compelling G to accept X as his lord ? Law of According to Bracton we must distinguish. If G has done homage to B, then G may, for good cause, object to having his homage made over to X. He may object that X is his enemy — a light enmity says Bracton is not a sufficient cause — or that X is too poor to fulfil the duty of warranty, or again that homage is indivisible, and that he can not be bound to do homage to X for part of the tenement, while he still holds the other part of B ; but unless such cause is shown, G's homage can be transferred to X As regards the service due from the tenement, as distinct from homage, this can always be transferred, even against the tenant's will ; the court has a process for compelling the tenant to acknowledge that he holds attorn ment. CH. I. § 9.] Restraints on Alienation. 329 of the new lord ; it has a process for ' attorning' i. e. turning over the tenant to the new lord^. He gives a case from 1223 : — X demanded homage from G, saying that B had attorned Cs homage and service to him, X ; thereupon G said that he held nothing of X and that he would not depart from B who was his lord ; then B was summoned and stated that he had made the gift to X ; but G still objected that he held two tenements of S by a single homage and service, only one of which tenements had been given to X, and that he would not divide his homage ; the court adjudged that X should have seisin of C's service, but that G could not be compelled to do homage to X. Service, says Bracton, can always, but homage can not always be attorned ". It is somewhat curious, as noticed above, that Bracton should allow the tenant to object to his homage being transferred, for he does not allow, at least expressly, any similar objection on the part of a lord whose tenant desires to put a new tenant in his place. Possibly the necessity for an attorn- ment, which really rested on quite other grounds, kept alive one side of an ancient rule while the other side had withered. But Bracton is very favourable to tenants. He holds, for example, that the tenant can always waive or resign his tenement and so free himself from the duties of service and homage, while the lord can not waive the homage or refuse the service, and so free himself from the duty of warranty, and the tenant may object if any attempt be made to substitute an insolvent for a solvent warrantor ". On the whole we have little reason to suppose that the Practice of rights of the tenants had ever in this country been a serious seignoiSs. obstacle to alienations by the lords*. In the charters we find the lords apparently exercising the fullest power of giving away the homage and the services of their tenants. If there was any ^ In this age it ia seldom said that the tenant attorns (attomat sevpsmn) to the new lord ; the old lord, or in some oases the court, attorns (attomat) the tenant to the new lord, or attorns the service and homage to the new lord. 2 Bracton, f. 81 b-82 b. See also Y. B. 32-3 Edw. I. p. 43. " Bracton, f. 80 b, 81 b, 382, § 5. However if the lord was so poor that he was unable to warrant the tenant, he was allowed to disclaim the seignory and the tenant then held of the next lord in the ascending scale ; Note Book, pi. 563, 674. * In 1130 E. de C. fined to the king ' ut Symon de Beloampo dominus suus uon daret servitium suum nisi concessu sue ' ; Pipe Eoll, Bl Hen. I. p. 62. 330 Tenure. [bk. ii. reason to suppose that the tenant would object to recognising a new lord, then a fine would be levied, and the tenant would be called on by a writ known as Per quae servitia to show cause why he should not be attorned ^ Fines transferring services are quite common; the subject-matter of the transfer is usually described as the service, or the homage and service of such an one". It would be a great mistake to suppose that the elaborate and lofty feudal ladders that we find existing in the thirteenth century, had been always, or even generally, con- structed by the process of adding new rungs at their nether end ; new rungs were constantly inserted in their middles. § 10. Aids. Duty of The duties implied in the relation between man and lord ford'^*''^ are but slowly developed and made legal duties. There long remains a fringe of vague obligations. The man should come to the aid of the lord in all his necessities ; the man's purse as well as his body should be at his lord's disposal if the lord be in a strait. Gradually the occasions on which an aid of money may be demanded are determined. Glanvill mentions the aid which helps a lord to pay the relief due to his overlord, the aid for knighting the lord's eldest son and marrying his eldest daughter ; also he raises the question whether the lord may not demand an aid for the maintenance of a war in which he is concerned ; such a demand, he thinks, can not be pressed^ From the Normandy of Glanvill's time we hear of the aid for the lord's relief, for marrying his daughter and ' Note Book, pi. 236, 369, 593, 598, 627, 948, 1622. The tenant who will not attorn can be sent to gaol : Y. B. 33-5 Edw. I. p. 317. ' Fines, ed. Hunter, e.g. 61, 65, 77, 109. When the tenant himself is spoken of as the subject of the transfer he generally is a tenant in villeinage ; but it would be rash to draw this inference in all cases. See e.g. Chron. de Melsa, i. 176 (a.d. 1160-72) a gift of a half-carucate and of Gilbert son of Eiohard, who holds the land with his wife and their children ; Whalley Couoher, i. 6. 7, a gift of Laving and Guy his brother and their heirs, who certainly seem to be freehold tenants of the donor. ' Glanv. ix. 8, 'Utrnm vero ad guerram suam manutenendam possint domiui huiusmodi auxUia ezigere quaero. Obtinet autem quod non possunt ad id tenentes distringere de iure, nisi quatenus facere velint.' In this passage guerra sua hardly means a national war. CH. 1. § 10.] Aids. 331 knighting his eldest son'. The charter of 1215 mentioned as the three aids, which the king might take without the common counsel of the realm, that for redeeming his body, for marrying his daughter and knighting his son ; and such aids were to be reasonable'' ; but, as is well known, the clause which dealt with this matter appeared in no later edition of the charter. During John's reign the prior of St Swithin's took an aid from his freeholders, farmers and villeins for the payment of his debts', the bishop of Winchester for the expenses to which he had been put in the maintenance of the king's honour and the dignity of the church*, the abbot of Peterborough took an aid to enable him to pay a fine to the king^ the earl of Salisbury to enable him to stock his land^ Nor do such aids cease with the year 1215 ; in Henry III.'s reign the bishop of Bath took an aid for the support of his knights in the king's service'- In 1217 after a Welsh war the king's military tenants who had done their service received permission, not only to collect the scutage from their knights, but also to raise a reasonable aid from all their free men'. However the clause expunged from the charter seems practically to have fixed the law. We learn also that it was next to impossible for the lords to collect aids without obtaining the king's writ and the sheriff's assistance. That writ would name no sum ; the aid was to be ' reasonable.' So late as 1235 we see Henry Tracey, having first obtained the king's writ, holding a little parliament of his knights in Devon- shire ; they grant him an aid of 20 shillings on the knight's fee for the marriage of his eldest daughter". Bracton speaks of these aids as due rather of grace than of right ; they are the outcome of a personal not of a predial obligation ; they are not to be reckoned as ' services ''"- This is the ancient theory, but it must already have been obsolescent. A statute of 1275 fixed the rate of the aid to be taken for marrying the eldest daughter and knighting the eldest son at 20 shillings for the knight's fee and 20 shillings for 20 librates of socage land", and thus in effect destroyed the doctrine of the lord's need and the ' Trds anoien eoutnmier (Tardif ) c. 47, 48 ; Ancienne ooutume, o. 35. 2 Charter of 1215, o. 12. s Bot. Pat. p. 52. * Bot. Pat. p. 61. 6 Ebt. CI. i. 66. " Eot. CI. i. 127. ' Eot. CI. i. 306. " Eot. CI. i. 570-1. » Note Boob, pi. 1146. i» Bract, f. 361). " Stat. West. I. (3 Edw. I.) c. 36. 332 Tenure. [bk. ii. tenant's gracious help. This statute bound the mesne lords ; a later statute was required to bind the king'. The constitutional side of the history of aids we need not here discuss, but the aid is one of the most widely distributed of the feudal phenomena-. § 11. Escheat and Forfeiture. Escheat. In the background but ever ready to become prominent stands the lord's right to escheats. This forms as it were a basis for all his other rights. The superiority which he always has over the land may at any time become once more a full ownership of it. Though he has given the land to the tenant and his heirs, still there may well be a failure of heirs, for the tenant can not institute an heir, only God makes heirs; and in this case the land falls to, escheats (excadere) to the lord. Already in Glanvill's day a lawyer may sometimes speak of the lord as the tenant's ultimus heres^; but such a phrase hardly expresses the law; when land escheats the lord's superiority swells into simple ownership ; all along he has had rights in the land*. Nor is a failure of heirs the only cause of an escheat. If the tenant is outlawed or convicted of felony then, after the king has exercised the very ancient right of wasting the criminal's land for year and day, the tenement returns to its lord. A distinction is established between treason and felony ; if a tenant commits treason all his lands of whomsoever they were holden are forfeited to the king, while the felon's lands escheat to his lord. How far back this distinction can be traced seems doubtful ; but John and his successors apparently insisted upon it when they enriched themselves by seizing the terrae Normannorum, the English lands of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus forced upon them the choice between two nationalities. As regards felony we have seen that the idea 1 Stat. 25 Bdw. III. stat. 5, o. 11. Stubbs, Const. Hist. ii. 521. 2 See Ducange, a. v. auxilium; Madox, Exchequer, oh. xv. § 1 ; Viollet, Etablissements, iv. 18-20 ; Luohaire, Manuel des institutions francjaises, 206. ' Glanv. vii. 17: 'Ultimi heredes aliquorum sunt eorum domini.' * Bracton, f. 297 b (last lines), distinguishes between cases in which the lord who comes to the land by escheat can be treated as filliug the place of the tenant's heir from those in which such treatment is impossible. CH. I. § 11.] Escheat and Forfeiture. 333 implied by that term had been changing; it now stood for ' serious crime/ it had once stood for ' breach of the feudal bond.' On the one hand the lords had gained ; they got escheats if their tenants committed such crimes as homicide or theft ; on the other hand they had lost. By openly disavowing his lord the tenant might indeed lose his tenement ; even in Bracton's day such a disavowal was sometimes called felonious', and in much later times a disavowal and a consequent forfeiture might be found in the fact that the tenant had paid his rent, or done his homage, to a wrongful, instead of to the rightful, claimant of the seignory. But on the other hand the lord seems to have had very little power of ejecting a tenant for the mere non- performance, even the wilful and protracted non-performance of his services. This is a matter which requires some exami- nation. In Bracton's day the lord when the services are in arrear Lord's . , remedies has three courses open to him. (1) We may mention first — againat though this is not his readiest remedy — an action in the king's tenant.'"^ court for the recovery of customs and services. This is a tedious and laborious action. It is regarded as proprietary, not possessory. A lord will hardly use it unless there is some t]^e kSig°s dispute between him and his tenant about the nature or '"""'• quantity of the services. In that case it will conclusively establish the lord's title and the victorious lord will have the sheriff's aid in distraining for the arrears. But unless there has been some disavowal of the tenure on the tenant's part, there is no action in the king's court that will give the lord the land in demesne. Feoffors and feoffees are indeed free to make the express bargain that if the services be in arrear the feoffor may enter once more on the land and take it to himself; but we shall see few such bargains made before the middle of the thirteenth century'^ Such then is our common law, and it is well worthy of remark ; it does not turn out the tenant from the land because he can not or will not perform his services. Two statutes of Edward I. were required to give the lord an ampler remedy : — the action called cessavit per biennium was 1 See above, p. 248. " Hist. Abingd. ii. p. 168, gives from Henry I.'s day an instance of a re-entry - clause in a feoffment in fee ; but such clauses seem quite uncommon, even in leases for years, until about 1250. The lords may still be relying on the efficiency of their courts. 334 Tenure. [bk. ii. invented ; if the tenant allowed his services to fall into arrears for two years, the lord might claim the land in demesne*. There can, we think, be little doubt that this new action was borrowed immediately from the canon law and mediately from the legislation of Justinian. It is one of the very few English actions that we can trace directly to a foreign modeP. Distress. (2) The lord's handiest remedy is that of distraining his tenant to perform the services that are in arrear. This means that, carefully observing certain rules as to when and where and what he may seize, he takes the chattels that are found upon the tenement and keeps them in his custody until the tenant either renders the arrears or finds security to contest in a court of law the justice of the seizure. The idea of distress (districtio) is that of bringing compulsion to bear upon a person who is thereby to be forced into doing something or leaving something undone; it is not a means whereby the distrainor can satisfy the debt that is due to him. He may not appro- priate the namium, the thing that he has taken, nor may he sell it; he must just keep it as a gage (vadium) so that the person from whom it has been taken may be constrained to perform his duty. This right to distrain for services in arrear is in the latter half of the thirteenth century a right that is freely exercised by every landlord, and he exercises it although he has as yet taken no judicial proceedings of any kind against his tenant. Nevertheless we may see much to make us think that this power of extra-judicial distraint is not very old. Bracton speaks as though it were still usual for a lord to obtain a judgment in his own court before he distrains a tenant into the performance of his services; and we may see that in his day some lords were still doing this'. 1 Stat. Glouo. e. 4; Stat. Westm. ii. c. 21; Second Institute, 295, 400. €oke says that he had 'read amongst ancient records' that a cessavit was brought in the reign of King John. We have found no trace of any such action before the statutes. " Blaokstone, Comment, iii. 232. In Ood. 4. 66. 2, Justinian lays down the rule that the emphyteuta whose rent is in arrear for three years may be ejected. In Nov. 7. 3. 2, the period of three years is out down to two years where the landlord is a church. In this form the rule passes into the Canon Law ; o. 4, X. 3. 18. 8 Leg. Henr. 51 § 3 ; Glanvill, ix. 8 ; Bracton, f. 157 b ; Note Book, pi. 2, 78, 270, 348, 370, 1207 ; Bigelow, Hist. Procedure, 202-8. Distraint as a means of compelling appearance in court is of course another matter. CH. I. § 11.] Escheat and Forfeiture. 335 (3) This leads us to speak of the possibility of proceedings Prooeed- being taken in the lord's own court for the exaction of the rent Srd's'own or the expulsion of the defaulting tenant. It is possible that "*""'• at one time the non-performance of services was regarded as a sufficient cause of forfeiture. Against any disseising of the tenant 'without a judgment,' there had for a long time past been a very strong feeling; it finds expression in the most famous words of the Great Charter. But very probably the lord who kept a court was entitled to demand of it a judgment ' abjudicating' from the tenement a tenant who, after sufficient warnings, would not render his due service'. However it seems that our king's court will not sanction so strong a measure. The most that it permits the lord to do is this : — after distrain- ing the tenant by his chattels, the lord may obtain from his seignorial tribunal a judgment authorizing him to distrain the tenant by his land. This obtained, he can seize the land into his own hand, but only by way of distress, only as a mere gage {simplex namiicm), and as a mode of coercing the tenant into the path of duty. He may take no fruits from the land, he may make no profit of it, he must ever be ready to give it up if the tenant will satisfy all just demands ^ Even this is possible only to the lord who is great enough to keep up an efficient court for his freeholders. In England the aboriginal weakness and rapid degeneration of the feudal tribunals, and the domin- ance of a royal court which does not love seignorial justice secure to the freeholding tenant a very tight grip of the land. At the end of Henry IIl.'s reign he is too well off. If he chooses to let the land 'lie fresh,' to keep no distrainable chattels on it, his lord is powerless. An action must be borrowed from the canonists in order that he may be constrained to fulfil his engagements or be turned out of his tenements 1 Hist. Abingd. ii. p. 128 ; in Henry I.'s time a tenant of the abbey is held to have forfeited his land by default in military service ; but the abbot does not proceed to extremities. See also Bigelow, Placita, p. 97, 166-173. The last of these cases goes to show that even in the earliest years of Henry II. a tenant could not be deprived of his land for non-payment of rent. In older times a refusal to perform military service would have been a near approach to a felony. Lib. Feud. ii. 24 : ' Non est alia iustior causa beneficii auferendi, quam si id, propter quod benefioium datum fuerit, servitium facere recusaverit.' But in England 'feudal ' tenure in becoming universal soon loses its ' oonditioualness.' 2 Glanvill, ix. c. 8 ; Bracton, f. 205 b ; Note Book, pi. 2, 270, 348, 370. 8 The extreme reluctance of ancient law to deprive a tenant of his tenement 336 Tenure. [bk. ii. However in the thirteenth century the possibility — no very remote one — that the land would escheat, was, when coupled with the power of distress, a quite sufficient manifestation of the idea that the land, though it was the tenant's, was also in a very real sense, the lord's land. The tenant's interest in it might at any time expire and leave the lord's interest sub- sisting. Snrvey of We are now in a position to foresee that of the four great tenures, free tenures one is destined to grow at the expense of the rest. For a moment it might be thought that the trenchant statute of 1290, the Quia emptor es terrarum, would stereotype the tenures for ever. To a certain extent this is true in law but only to a certain extent. Even after the statute a new tenure might sometimes be created; every feoffment made by a tenant in frankalmoin in favour of a layman would create a tenure between the donee and the donor's lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage; thus in a perfectly regular way socage would grow at the expense of frankalmoin \ We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for less archaic tenures, in some cases by the consent of both parties, still more often against the tenant's will; he had put himself into the wrong by alienating without the king's licence, and the king exercised the right of ' arrenting the serjeantyl' But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no preroga- tive wardship, 'petty serjeanty' came to be regarded as but ' socage in effect'.' A similar cause in course of time gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty^; the rights of a mesne lord to the wardship and marriage of his tenant by serjeanty seem to have become merely because he has not paid rent is shown by the gavelet procedure of the Kentish custom ; Statutes, i. p. 225. After a great deal of forbearance the land is at last adjudged to the lord ; but even then the tenant has a theoretical right of redeeming it by paying the arrears nine (or is it eighteen ?) times over and adding a wergild of £5. The law does not like to say that he has lost the land for good and all, though it imposes an impossible condition upon him if he wishes to have it back again. 1 Littleton sec. 139. " See above, p. 315. ^ Littleton sec. 160 ; see above, p. 315. * Littleton sec. 159. CH. I. § 12. J Unfree Tenure. 337 doubtful, and to have finally disappeared, and by this time the term 'socage' already covered so heterogeneous a mass of tenures that it could be easily stretched yet a little further so as to include what Bracton would certainly have called serjean- ties'. Again, there can be little doubt that a very large number of military tenures became tenures in socage, and this without anyone observing the change. In Bracton's day the test of military tenure is the liability to scutage, and, as already said, the peasant or yeoman very often had to pay it ; if he had not to pay it, this was because his lord had consented to bear the burden" In Edward I.'s day scutage was becoming, under his grandson it became, obsolete. There was nothing then in actual fact to mark off the services of the yeoman who was liable to pay scutage as well as to pay rent, from those of the yeoman who was free even in law from this never collected tax. The one was theoretically a military tenant, the other was not ; in the one case the lord might have claimed wardship and marriage, in the other he could not ; but then we have to observe, that, if the tenant held at a full or even a substantial rent, wardship and marriage would be unprofitable rights ; the lord wanted rent-paying tenants ; he did not want land thrown on his hands together with a troop of girls and boys with claims for food and clothing. Thus scutage being extinct, wardships and marriages unprofitable, mere oblivion would do the rest ; many a tenure which had once been nominally a military tenure would become socage. Thus socage begins to swallow up the other tenures and preparation is already made for the day when all, or practically all, tenants will hold by the once humble tenure of the sokemanni. § 12. Unfree Tenure. The tenures of which we have hitherto spoken are free Freehold tenures. To free tenure is opposed villein tenure, to the free tenement the villein tenement, to the freeholder {lihere tenens) the tenant in villeinage. This is the contrast suggested by the word 'free'; but the terms 'free tenement' and 'freeholder' are becoming the centre of much technical learning. We may 1 Britton, ii. 10, and the editor's note. ^ See above, p. 256. P. M. 22 338 Tenure. [bk. ii. well find that a man holds land and that there is no taint of villeinage or unfreedom in the case, and yet that he has no freehold and is not a freeholder. These terms haye begun to imply that the tenant holds heritably, or for life. Perhaps we shall be truer to history if we state this doctrine in a negative form : — these terms imply that the tenant does not hold merely at the will of another, and that he does not hold for some definite space of time ; a tenant at will is not a fi-ee- holder, a tenant for years is not a freeholder. Such tenancies as these are becoming quite common in every zone of the social system, and they imply no servility, nothing that is incon- sistent with perfect freedom. Thus, for example, King John will provide for his foreign captains by giving them lands ' for their support in our service so long as we shall think fit,' and in such a case this tenancy at will by a soldier is, we may say, the best representative of the heneficia and feoda of past cen- turies ^. But now-a-days such tenancies are sharply contrasted with feoda ; the tenant has no fee and no free tenement. And so again we may see a great man taking lands for a term of years at a money rent ; he has done nothing in derogation of his freedom, the rent may be but a trifling sum ; still he is no freeholder. Technical A full explanation of this phenomenon, that a man should "rSfd/ ^old land, and hold it not unfreely, and yet not hold it freely, can not be given in this context since it would involve a dis- cussion of the English theory of possession or seisin. But we must not fail to notice that the term ' free tenement' has ever since Henry II.'s day implied possessory protection by the king's court. This is of great moment. From our statement of the relation between the freehold tenant and his lord we have as yet omitted the element of jurisdiction. The existence of this element our law fully admitted and at one time it threatened to become of vital importance. It was law that the lord might hold a court of and for his tenants; it was law that if A was holding land of M and X desired to prove that he and not A ought to be if s tenant, Jf s court (if he held one) was the tribunal proper to decide upon the justice of this claim ; only if M made default in justice, could X (perhaps after recourse to all M's superior lords) bring his case before ' See e.g. the provision for Engelard of Cigognfi : Eot. CI. i. 79. CH. I. § 12. ] Unfree Tenure. 339 the king's court. This principle of feudal justice is admitted, though its operation has been hampered and controlled; in particular the king has given in his court a possessory remedy to every ejected freeholder. Eveiy one who can say that he has been 'disseised unjustly and without a judgment of his free tenement ' shall be restored to his seisin by the king's justices. Thus the term ' free tenement ' becomes the pivot of a whole system of remedies. Clearly they are denied to one who has been holding ' unfreely,' who has been holding in villeinage ; but a doctrine of possession now becomes necessary and has many problems before it. What if the ejected person was holding at the will of another? Perhaps it is natural to say that, albeit he occupied or ' detained ' the tenement, still he was not possessed of it. At any rate this was said, the tenant at will tenet nomine alieno ; possidet cuius nomine possidetur ; eject the tenant at will, you disseise (dispossess) not him, but his lord, and his lord has the remedy. And what of the tenant for years ? The same was said ; he holds on behalf of another ; eject him, you disseise that other. Such was the doctrine of the twelfth century ; but already before the middle of the thir- teenth the lawyers had discovered that they had made a mistake, that the ' termor ' or tenant for years deserved posses- sory protection and they invented a new action for him. The action however was a new one, and did not interfere with bhe older actions which protected the seisin of free tenement; it was too late to say that the termor had a free tenement or was a freeholder. This episode in our legal history had the most important consequences; it rules the terminology of our law even at the present day and hereafter we shall speak of it more at large ; it is an episode in the history of private law. In the thirteenth century the main contrast suggested by the term ' free tenement ' was still the villein tenement, and tenure in villeinage is intimately connected with some of the main principles of public law ; indeed from one point of view it may be regarded as a creature of the law of jurisdiction, of the law which establishes courts of justice and assigns to each of them its proper sphere. The name 'villeinage ' at once tells us that we are approach- vaieinage ing a region in which the law of tenure is as a matter of fact andT™^ intertwined with the law of personal status ; ' villeinage ' is a ^t"'"^- tenure, it is also a status. On the one hand the tenant in 22—2 340 Tenure. [bk. II. villeinage is normally a villein, the unfree tenements are held by unfree men ; on the other hand the villein usually has a tenement albeit a villein one, the unfree man is an unfree tenant. Then again the villanns gets his name from the villa, and this may well lead us to expect that his condition can not be adequately described if we isolate him from his fellows ; he is a member of a community, a villein community. The law of tenure, the law of status, the law which regulates the com- munal life of vills or townships are knotted together. Still the knot may be unravelled. It is very possible, as Bracton often assures us, for a free man to hold in villeinage and thus we may speak of villein tenure as something distinct from villein status. Again, as we shall hereafter see, the communal element which undoubtedly exists in villeinage, is much neglected by the king's courts, and is rather of social and economic than of legal importance. We may suppose therefore that the tenant in villeinage is a free man. What then are the characteristics of his tenure'? Now in the first place we may notice that it is not protected in the king's courts. For a moment perhaps there was some little tect"d b doubt about this, some chance that Pateshull and Raleigh would the king's forestall by two long centuries the exploits ascribed to Brian and Danby, would protect the predecessor of the copyholder even against his lord \ This would have been a bold stroke ; the ready remedy for the ejected freeholder laid stress on the fact that he had been disseised of his ' free ' tenement, and however free the tenant in villeinage might be, his tenement was unfree. A quite new remedy would have been necessary for his pro- tection ; the opportunity for its invention was lost, and did not recur until the middle ages were expiring '. It was law then. ViUein tenure. * We need hardly say that the whole of this subject is admirably discussed in Vinogradoff's Villainage in England. " The important cases are Bestenaver v. Montacute, Note-Book, pi. 70, 88, and William Henry's son v. Bartholomew Eustace's son, Ibid. pi. 1103. As to the decisions of Brian and Danby under Edw. IV., see Littl. Tenures, sec. 77 ; it is doubtful whether Littleton wrote this passage. " Vinogradoff, Villainage, 78-81. lb is possible to regard these decisions of Pateshull and Baleigh as belated rather than premature ; but the formula of the assize of novel disseisin lays stress' on the freedom of the tenement and therefore goes to prove that the lawyers of Henry II. 's reign had not intended to protect villein holding. The original version of Magna Carta might seem to give protection to the free man holding in villeinage ; but in 1217 some words were CH. I. § 12.J Unfree Tenure. 341 that if the tenant in villeinage was ejected, either by his lord or by a third person, the king's' court would not restore him to the land, nor would it give him damages against his lord in respect of the ejectment. He held the land nomine alieno, on his lord's behalf; if a third person ejected him, the lord was disseised. Before the end of the thirteenth century, the king's courts were beginning to state their doctrine in a more posi- tive shape : — the tenant in villeinage is in our eyes a tenant at will of the lord '. •- The shade of meaning which such words bear at any given Want of moment is hard to catch, for this depends on the relation and want between the king's courts and other courts. At a time when °* "S^'- the feudal courts have become insignificant, denial of remedy in the king's court will be equivalent to a denial of right, and to say that the tenant in villeinage is deemed by the king's court to hold at his lord's will is in effect to say that the lord will do nothing illegal in ejecting him. At an earlier time the royal tribunal was but one among many organs of the law, and the cause for our wonder should be that it has undertaken to protect in his possession every one who holds freely, not that it has stopped at this point and denied protection to those who, albeit free men, are doing what are deemed villein services. We have but to look abroad to see this. By its care for every freeholder, though he were but a socage tenant with many lords above him, our king's court would gradually propa- gate the notion that those whom it left uncared for were rightless. But this would be the effect of time; even in the thirteenth century the freeholder could not always bring a proprietary action before the royal tribunal without the help of some legal fiction, and in Bracton's day men had not yet for- gotten that the royal remedies which were in daily use were new indulgences conceded by the prince to his people I interpolated, apparently for the very purpose of showing that his case was outside the charter. The text of 1215 says 'NuUus liber homo dissaisietur...niBi per legale judicium etc' That of 1217 says 'Nullus liber homo dissaisietur de libera tenemento sno vel libertatibus vel liberis consuetudinibue swis,. .nisi etc' 1 Britton, ii. 13 : ' Villenage est tenement de demeynes de ohesoun seignur, bailie a tenir a sa volunt^ par vileins services de enprouwer al oes le seignur.' " Bracton, f. 164 b : ' de benefioio principis suocurritur ei per reooguitionem assisae novae disseisinae multis vigiliis exoogitatam et inventam.' 342 Tenure. [bk. ii. Protection As a matter of fact, tenure in villeinage is protected, and if tenure by we choose to Say that it is protected by 'positive morality' TOurts!*^ rather than by ' law properly so called,' we are bound to add that it is protected by a morality which keeps a court, which uses legal forms, which is conceived as law, or as something akin to law \ The lord has a court ; in that court the tenant in villeinage, even though he be personally unfree, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. He ig a customary tenant, custwnarius, consuetudinarius; he holds according to the cus- tom of the manor. Were we Germans, we might say that he holds under Hofrecht, the law of the manor, though his rights are not recognised by Landreoht, the general law of the realm. This we can not say ; the manorial custom very rarely, if ever, dignifies itself with the name of law, but still it is a custom which has been and ought to be enforced by a court, enforced if need be by compulsory processes which will eject the wrong- ful in favour of the rightful occupant. The tenant in vil- leinage does not scruple to say that he is seised of the land de iure ' according to the custom of the manor V though his lord may be seised of it according to the law of the king's courts. Such evidence as we have goes to show that, when his lord was not concerned, he was well enough protected in his holding. The rolls of manorial courts bear witness to a great deal of litigation concerning the villein tenements; it seems to be conducted with great regularity ; the procedure does not err on the side of formlessness ; it is rigid, it is captious ; the court is no court of equity which can overlook a pleader's blunder and do natural justice ; it administers custom. No doubt there are cash transactions between the lord and the litigants ; the lord has procedural advantages for sale ; but then so has the king. There is nothing disgraceful, nothing illegal, in buying the right to have an inquest, a good inquest, nor even in promising an augmented price if the verdict be favourable. Then as to the case between lord and tenant, the tenant can not sue the lord in the lord's court ; the tenant in villeinage ejected by the lord has no remedy anywhere. But is this, we may ask, a ' We are here dealing with normal cases. Sometimes, as will be explained in our chapter on Jurisdiction, the lord may have had so few tenants in villeinage that he did not keep a court for them. ' Select Pleas in Manorial Courts, e.g. p. 39. CH. I. § 12.] Unfree Tenure. 343 denial of legal right ? The king disseises the Earl of Glou- cester; the earl has no remedy, no remedy anywhere; yet we do not deny that the honour of Gloucester is the earl's by law or that in disseising him the king will break the law. A good proof that the lords in general felt themselves Evidence bound more or less conclusively by the terms of the customary ?extraits.' tenures is to be found in the care they took that those terms should be accurately recorded. From time to time an ' extent ' was made of the manor ; a jury of tenants, often of unfree men, was sworn to set forth the particulars of each tenancy and their verdicts condescended to the smallest details. Such extents were made in the interest of the lords, who were anxious that all due services should be done ; but they imply that other and greater services are not due, that the customary tenants, even though they be unfree men, owe these services for their tene- ments, no less and no more. Statements to the effect that the tenants are not bound to do services of a particular kind are not very uncommon. As characteristics of villein tenure we have therefore these Attempt to two features : — it is not protected by the king's courts ; in ^^^ general it is protected by another court, the court of the lord, tenure, though even there it is not protected against the lord. Still as a matter of legal theory we can not regard these features as the essence of the tenure. We should invert the order of logic were we to say that this tenure is villein because the king's justices treat it as a mere tenure at will ; rather they treat it as a mere tenure at will because it is a villein, an unfree, tenure. We must look therefore in this as in other cases to the services which the tenant performs, if we are to define the nature of his tenure. He holds in villeinage because he performs villein services. A brief digression into a domain which belongs rather to The economic than to legal history here becomes inevitable. The ^rang^- phenomena of medieval agriculture are now attracting the ™®°'- attention that they deserve : here we are only concerned with them in so far as some knowledge of them must be presupposed by any exposition of the law of the thirteenth century*. Postponing until a later time any debate as to whether the ^ It will be almost needless to refer the reader to the works of Nasse, Seebohm, Ashley, Cunningham and Vinogradoff. . 344 Tenure. [bk. il. term manor bore a technical meaning, we observe that this term is constantly used to describe a proprietary unit of common occurrence; — the well-to-do landholder holds a manor or many manors. Now speaking very generally we may say that a man who holds a manor has in the first place a house or homestead which is occupied by himself, his bailiffs or servants. Along with this he holds cultivable land, which is in the fullest sense (so far as feudal theory permits) his own ; it is his demesne land. Then also, as part of the same complex of rights, he holds land which is held of him by tenants, some of whom, it may be, are freeholders, holding in socage or by military service, while the remainder of them, usually the large majority of them, hold in villeinage, by a merely customary tenure. In the terms used to describe these various lands we notice a certain instructive ambiguity. The land that the lord • himself occupies and of which he takes the fruits he indubitably holds 'in^ demesne'; the land held of him by his freehold tenants he indubitably does not hold ' in demesne,' his freehold tenants hold it in demesne, unless indeed, as may well be the case, they have yet other freeholders below them ; but as to the lands held of him by villein tenure the use of words seems to fluctuate ; at one moment he is said to hold and be seised of them in demesne, at the next they are expressly and sharply distinguished from his demesne lands, that term being reserved for those portions of the soil in which no tenant free or villein has any rights. In short, language reflects the dual nature of tenure in villeinage ; it is tenure and yet it is not tenure ; the king's courts giving no protection to the tenant hold that the lord is seised in demesne, but the manorial custom must distinguish between the lands holden in villeinage and those lands which are occupied by the lord and which in a narrower sense of the word are his demesne \ ' Thus Braoton, f. 75 b : ' tam dominioa quam villenagia quae dioi possunt dominioa'; f. 98, 'tertia pars villenagii quod eat quasi dominioum.' In the Hundred Bolls some jurors habitually reckon the villeinage to be part of the demesne, while others as habitually exclude the villeinage when they give the contents of the demesne. Thus (ii. 343) in the Bunstow Hundred of Essex their formula is — the lord has x acres in demesne of which y are in villeinage. On the other hand in Huntingdonshire [e.g. ii. 656) the lands held by villein tenants are not part of what the lord holds in demesne. The word demesne, which is the Anglo-French equivalent for the Latin dominicvm, is a very curious one. Our spelling of it seems due to llein •' . tenure and regarded as an unfree man, a bondman, villanus, nativus, servus. villein That a free man should hold in villeinage was very possible, and up and down the country there may have been many free men with villein tenements ; what is more, there likely enough were yet many more men whose status was dubious. This is one of the most remarkable points in villeinage ; villein tenure is of far greater practical importance than villein status. To prove that a man was personally unfree was, as we shall see in the next chapter, a diflScult matter, and a case in which a lord had in his own interest to undertake this proof was not very common. So long as the tenant did not make up his mind to quit hearth and home, leaving the means of his livelihood behind him, the lord had seldom to fall back upon an assertion of personal bondage in order to get what he wanted. If the tenant was refractory the lord could distrain him, could take the tenement away for a time or for good and all. For all this however, the ' extents ' of the thirteenth century show very plainly that in the estimation of their lords — and, we must add, of their neighbours, — the holders of unfree tenements were as a general rule unfree men. This is apparent enough in ' extents ' to which the tenants themselves pledge their oaths; it is very plain upon the face of the Hundred Rolls. The juries of different hundreds may choose different phrases, but in one way or another, either by using such terms as nativus and 1 See the very early (1239) specimen of a court roll in Cart. Bams. i. 423-9. " Select Pleas in Manorial Courts, i. 91, 171, 366 Tenure. [bk. ii. servus which imply personal unfreedom, or by laying stress on the payment of the merchet, they generally make it clear enough that in their opinion the case of a free man holding in villeinage is an uncommon one, one which may fairly be neglected by those who are dealing with large masses of men. § 13. The Ancient Demesne K The The king is a great land-owner. Besides being the supreme demesne lord of all land he has many manors of his own ; there is a oSier royal Constant flow of lands into and out of the royal hands ; they estates. come to him by escheat and forfeiture, they leave him by gifts and restorations. Now a distinction is drawn among the manors that he has. Some of them constitute, so to speak, the original endowment of the kingship, they are that ancient demesne of the crown, which the Conqueror held when the great settlement of the Conquest was completed and was registered in Domesday Book'' What has fallen in since that time is not considered as so permanently annexed to the kingly office ; it is not expected of the king that he will keep in his own hands the numerous honours, baronies and manors with which felony and treason and want of heirs are con- stantly supplying him ; rather it is expected that he will give these away again. Qi the other hand, he ought not to dissipate the old demesne manors. He does give them out, and that too to be held of him heritably, but often he reserves a substantial money rent ; they are to be held of him in ' fee farm.' This is hardly a matter of law ; all the king's manors are the king's to give upon what terms he pleases; still his ancient patrimony is regarded as more closely bound up with his office than are those mere windfalls which now and again come to his hands*. • See Vlnogradoff, Villainage in England, p. 89 fol. ^ See the Exon. Domesday, D. B. iy. 75 : ' Dominicatus Begis ad Regnum pertinens in Devenisoira.' ^ See Fleta, p. 3 : ' Antiqua maneria vel iura coronae annexa Eegi non lieebit alienare, sed omnls Bex coronae suae alienata revooare tenetur ' ; Britton, i, 221. A strong support for this doctrine is found in what seems to be the coronation oath of Edward I. ; see Stubbs, Const. Hist. ii. 105. CH. I. § 13.] The Ancient Demesne. 367 But in law also the distinction is important. We are immunities accustomed to define a ' franchise ' as a portion of royal power ancient in the hands of a subject, so that to speak of the king as d®'"^^''''- having franchises would be a contradiction in terms. Never- theless in early history the king appears as the first of all franchise holders, the first in point of greatness and the first, it well may be, in point of time. The king's estates are (to borrow a word from abroad) ' immunities,' perhaps the oldest of all immunities ; they stand outside the normal, national system of justice, police and finance. Inside them there prevails a royal, which is also a seignorial, justice, and which remains distinct from the ordinary justice of the realm, even when that is done in the king's name. The tenants on the ancient, the permanent, manors of the crown enjoy many ' liberties ' which flow from the king's rights, they are to a very high degree exempt from all justice, save that which is done among them by a court which they constitute and which is presided over by a royal bailiff, exempt to a very high degree even from the justice of the king's ' courts of common law' when those courts have come into existence. They know little of the sheriff; they have not to attend the moots of the shire or the hundred ; they need not serve as jurors ; wherever they go they pay no toll ; they are not taxed like other folk ; on the other hand they are liable to be tallaged by the king. The king profits by these immunities; his manors are governed from within; the cul- tivators of- his demesnes cannot be distracted from their duties to him'. He attracts men to his land; the serf who lives there unclaimed for year and day is privileged against re- capture. When new manors come to the king's hands they do not Once enjoy these immunities ; on the other hand when the king demesne, gives away in fee farm or otherwise one of the ancient manors, I^^^J^^ the donee takes it with all its privileges. This we may say is ft^^esne. an illustration of a general rule of law : — the escheat of a mesne lordship should leave unaltered the rights and duties of those who are the subjects of that lordship, and if a lord puts a mesne between himself and his tenant, that tenant should 1 Britton, ii. p. 13, gives this as the reason for the little writ of right. The Bokemen who enjoy it are the tillers of the king's soil and disputes about that soil are to be decided within the manor by simple and rapid processes, 368 Tenure. [bk. ii. neither gain nor lose by the change. Thus once ancient de- mesne, always ancient demesne. The tenants who have been free of toll but liable to tallage should still be free of toll but liable to tallage, though the king has ceased to be and the Prior of Barnwell has become their immediate lord. Peculiar All this would make the ancient demesne of importance in the ancient the history of political arrangements, in the history of the demesne, franchises, of justice, police and finance, though here the fran- chises and immunities enjoyed by the king's estates would have to take their place beside the very similar franchises and immunities enjoyed by the estates of other privileged persons. But we do not at once see why there should be any form of land tenure peculiar to the ancient demesne. However such a form of land tenure there is. TJi^ , Briefly stated the phenomenon which deserves investigation problem ... stated. IS this : — On the ancient demesne there is a large class of per- sons whose economic and social position is much the same, if not quite the same, as that of the ordinary holders in villeinage, but who are very adequately protected by law or by custom, which has all the force of law, in the enjoyment of their hold- ings. This protection is given to them by two remedies spe- cially adapted to meet their case, the one is ' the little writ of right close according to the custom of the manor,' the other is the writ of Monstraverunt. We will speak first of these reme- dies and then of the class for whose sake they exist. The uttie rpj^g , jj^^jg ^j.^^ q£ j^jgjj^ ^j^gg : -g ^^^ unlike the ' great writ right. of right patent.' This latter is the ordinary proprietary remedy for one who thinks that he ought to hold land by free tenure of a mesne lord. The writ patent is directed by the king to the mesne lord ; it bids him ' hold full right ' {plenum rectum teneas) to the demandant and adds a threat that if he neglects so to do, the king's sheriff will do it '. The lord then, if he has a court, holds a court, and justice can there be done to the demandant, though there are several ways in which the case can be withdrawn from his tribunal and removed first into the county court and then into the king's court. Now the little writ is a similar writ. It is directed by the king to the bailiffs of the manor'' — this will be so whether the king be 1 Glanv. xii. c. 3 ; Braoton, f. 328 ; Beg. Brev. f. 1. ' When the lord himself is the deforciant, it is directed to him, in other cases to his bailiffs, see Beg. Brev. f. 9 b. CH. I. § 13.] The Ancient Demesne. 369 himself the immediate lord of the manor or whether it is in the hands of a mesne — and it bids the bailiffs do full right to the demandant 'according to the custom of the manor''. It contains no threat of the sheriff's interference, and this may be the reason why it is a ' close writ ' and not a ' patent writ,' since no one but the recipient, who is not a public official, is required to act upon it. Thereupon the court of the manor proceeds to hear the case and is fully competent to determine it. Still it acts under surveillance ; if it is going wrong the sheriff can be sent with four knights of the county to watch its proceedings ", and there are means by which the matter can be brought before the king's central court '. This writ, we say, is in use both when the manor is in the king's hand, so that the demandant is claiming to hold immediately of him, and also when the manor has been given to a mesne lord. In the latter case the lord himself may be the defendant. So long as the king himself is the immediate lord, there can be no writ against the lord ; of course not ; but the would-be tenant of a few acres on the ancient demesne is in this respect no worse off than the mightiest of the barons; he who would get justice out of the king must petition for it in humble wise. But when the manor has been given to a subject, then the writ will lie against him ; he can be required to do justice in a case in which, if the demandant's story be true, he himself is the evil doer. This is a remarkable point. The abbot of Ramsey holds the manor of King's Ripton, which is part of the ancient demesne. Joan of Alconbury thinks that she ought to hold eight acres which are in the abbot's hand. The abbot is summoned once, twice, thrice and then distrained once, twice, thrice, to appear in his own court and answer her demand *- Now so Ions: as the manor is in the king's hand, the case of Meaning of " . . J. j-£e thehttle the persons of whom we are speakmg may not seem to dmer writ. radically from the case of villein tenants. Any one who claims to hold in villeinage is likely to get good enough justice in the lord's court, provided that his opponent be not his lord. The difference may seem to be merely procedural. When one claims villein land in an ordinary manor, one proceeds without 1 Eeg. Brev. f. 9. 2 By the writ Accedas ad cwriam, Eeg. Brev. f. 9 b. 3 By the writ of Becordari, Eeg. Brev. f. 10 b, 11. 1 Select Pleas in Manorial Courts, i. pp. 114-121. P. M. 24 370 Tenure. [bk. ii. any writ ; ordinary lords do not keep chanceries ; when one claims unfree land (for so we will for the moment suppose it to be) in a manor of which the king is the immediate lord, and which is regarded as part of the permanent endowment of the crown, one has to get a writ. This is but a. detail. For a moment we may even feelinclined to say that there is nothing in the distinction but that love for parchment and wax which is natural to a government office. Even when it is added that the court of a manor on the ancient demesne acts under the supervision of the courts of common law, we may find analogies for this on the estates of prelates and other great lords ; such a lord sometimes has a central court, a ' honourial ' court, which controls the doings of his manorial courts ; the so-called courts of common law, it may be said, are the king's central court, the court of the great honour of England. Still, though there may be some truth in these suggestions, they must not be suffered to conceal a really important distinction. In the case of the ancient demesne, even while the manor is immediately subject to the king, the consuetudo manerii is put on a level with the law of the realm, it is enforced by the highest of all tribunals, indeed it is leso et consuetudo manerii \ Nor is the mere use of a writ of no importance ; it solemnly sanctions the custom. We have far more reason for saying that the dis-. tinctions between 'great' and 'little,' between 'close' and ' open ' are details, than that the distinction between ' writ ' and ' no writ ' is a detail. But when the manor goes out of the king's hand, then there is a truly abnormal state of affairs ; the king compels the lord to do justice to claimants of land who yet claim no freehold. A climax is reached when the lord himself has to answer in the manorial court and submit him- self to its process. The Mon- This is not all. The little writ serves the turn of an individual person who claims land according to the custom of the manor ; but the tenants of whom we are speaking are pro- tected, and protected collectively, against any increase of their services. This is made very plain when the manor is in the hands of a mesne lord. If he attempts to increase the cus- 1 Beg. Brev. 10 b : ' Cum secundum legem et oonsuetudinem infra maneria quae de huiuamodi antiqno dominico coronae existunt haotenus nt dioitur usitatas etc. OH. I. § 13.] The Ancient Demesne. 371 ternary services, some of the tenants, acting on behalf of all, will go to the royal chancery and obtain a writ against him. Such a writ begins with the word Monstraverunt\ The king addresses the lord : — 'A, B and G, men of your manor of X, which is of the ancient demesne of the crown of England, have shown us that you exact from them other customs and services than those which they owe, and which their ancestors did in the time when that manor was in the hands of our predecessors, kings of England ; therefore we command you to cease from such exactions, otherwise we shall order our sheriff to interfere.' The lord being deaf to this command, another writ is sent compelling him to come and answer for his disobedience before the king or before the justices of the Bench. When the case comes before the royal court, the complainants have in the first place to show that the manor is part of the ancient demesne ; Domesday Book is used for this purpose as a conclusive test ; then, if this fact be proved or admitted, there arises the ques- tion whether the lord has exacted unaccustomed services, and if this be answered against him, it is adjudged that he shall do :S0 no more. Here then we see a class of tenants who are not freeholders but who are fully protected in the king's court against their lord. Of course if the manor be in the king's hand, there is no place for this procedure ^ Still if the tenants allege that they are being oppressed by the king's bailiffs, they can present a petition to the king and the matter will be investigated in the Exchequer'. 1 Eeg. Brev. f. 14 2 Fleta, p. 4 : ' sed cum huiusmodi [sokemanni] per Begem vel suos ex- pellantar ab huiusmodi tenemento, non habetur remedium nisi tantum suppli- oatio.' ^ As to this last point see Vinogradoff, p. 103. It is very probable that the Monstraverunt did not become a writ ' of course ' until a comparatively late time. It is not mentioned by GlanviU or Bracton, nor have we found it in any Eegistrum Brevium of Henry III. 's reign. There is some sign that the step of making it a writ ' of course ' was not taken until 1290. In that year the men of Grendon, asserting that they were on the ancient demesne, complained to the king of their lords; the petition is thus endorsed 'Let the Chancellor convene the justices and provide for this and similar cases a remedy to endure for all time ' : Eot. Pari. i. 60. But such writs were in use early in Henry III.'s reign : see Note Book, pi. 1230, 1237, Placit. Abbrev. 113, 119 ; and were extremely common in the early years of Edward I. The comparatively late appearance of this writ as a writ de cursu is no proof that the principle which it enforced was a new one ; but it is, as Vinogradoff has well argued, some proof that the procedure against mesne lords grew out of a procedure against royal 24—2 372 Tenure. [bk. ii. The classes And DOW we may ask, who are the persons for whose sake Bractou's^' these remedies exist. Bracton in a classical passage tells us statement, ^j^^^^ ^^ ^.j^^ king's demesne there are several kinds of men. In the first place there are serfs or born bondmen who were (i.e. in the persons of their ancestors) serfs before the Conquest, at the Conquest and after the Conquest, and to this day they perform villein services and uncertain services and they are bound to do whatever is commanded to them, provided it be lawful and right. And at the Conquest there were free men who freely held their tenements by free services or free customs, and when they were ejected by the mighty, they came back and received the same tenements to hold in villeinage by doing servile works, but certain and specified works, and they are called glehae ascriptitii and none the less are they free men, for albeit they do servile works, still they do them, not by reason of personal status, but by reason of their tenure ; and for this reason they cannot bring the assizes of novel disseisin or mort d'ancestor [the freeholder's possessory remedies], for their tenement is villeinage, though privileged villeinage; they can only bring the little writ of right according to the custom of the manor ; and for this reason are they called glehae ascriptitii, for they enjoy the privilege of not being removed from the soil so long as they do their right services — no matter to whose hands the king's demesne may come ; nor can they be compelled to hold their tenements against their will. Then there is another set of men on the king's manors who hold of the demesne by the same customs and villein services as the above, and they do not hold in villeinage nor are they serfs, nor were they such at or before the Conquest, but they hold under covenant which they have made with the lord, and some of them have charters and some have not, and if they be ejected from their tene- ments, they shall (according to some) have the assize of novel disseisin, and their heirs shall have the assize of mort d'ancestor. bailiffs. Against the royal bailiffs there would naturally be no writ ' of course ' ; if one has to complain of the king's agents one must begin with a petition to the king. As to the little writ of right, Glanvill does not, and has no occasion to mention this; in his day 'original writs' of any kind were still somewhat new as normal institutes of the law. On the other hand the writ is found in a Eegistrum of Henry III.'s time as a writ de cwsu and is currently mentioned by Bracton as a very well-known thing; see Maitland, Eegister of Original Writs, Harvard Law Eeview, iii, 170. CH. I. § 13.]- The Ancient Demesne. 373 And there are other sorts of men in the king's manors and demesnes, who there, as might be the case elsewhere, hold freely in free socage or by military service under some modern feoff- ment made since the Conquest '. Whereas then on ordinary manors we have, according to Bracton's legal theory, but two tenures that must be distinguished for diacuTsed'. our present purpose, on the ancient demesne we have at least three. There are freeholders of the common kind, holding in free socage or by military service, and they require no special remedies. There are serfs holding in absolute villeinage. But between them there is a class of tenants whom Bracton oddly enough calls glebae ascriptitii because they can not be ejected from their holdings; they are free men; they can leave their tenements when they will; they hold by villein services, but services which are certain; they use the little writ of right. Lastly there is a class to which we may be allowed to give the name of ' conventioners '". They differ from the ascriptitii rather in the origin of their holding and in the nature of their remedies than in the substance of their rights and duties. The ascriptitii are supposed to trace the origin of their class back to the Conquest, they hold by customary tenure ; the ' con- vention ers ' hold under modern agreements and it is arguable that, though they do villein services, they have the ordinary remedies of freeholders. In another and equally well known passage we hear of the A second « 1 -r> J. • 1 ■ -J.! J. * 1 statement. same four classes. Bracton is speaking now without special reference to the ancient demesne and remarks that villeinage may be either absolute or privileged. Absolute villeinage is the tenure of one who, be he free or be he serf, is bound to do whatever is commanded him, and does not know in the evening what he will have to do in the morning. Then there is a villeinage which is not so absolute; as when land is granted by covenant to a free man or a serf for fixed, though villein, customs and services. If such a ' conventioner ' be ejected, Bracton (disallowing the opinion which would give him the freeholder's assizes) holds that his proper remedy is an action on the covenant. Then, says he, there is another kind of villeinage which is held of the king from the Conquest of Eng- 1 Bracton, f. 7b ; Fleta, pp. 3, 4. ' These do not appear very clearly in Fleta, p. 4. 374 Tenure. [bk. II. land, which is called villein socage, and is villeinage though privileged villeinage; for the tenants of the king's demesnes have this privilege that they may not be removed from the soil so long as they can and will do their due service,, and these ' villein sokemen ' are properly called glebae ascriptitii ; they do villein, but fixed and specified, services. Lastly, he once more remarks that in a royal manor there may be knights and free- holders, holding by military service or by free socage \ These freeholders we may dismiss from our minds, they have and they require no peculiar remedies; indeed the term ' ancient demesne ' having come to imply peculiar remedies we find it contrasted with 'freehold,' and in a judgment of Edward I.'s reign we are told that the lord of the manor, be he the king or no, can change 'ancient demesne' into 'freehold' by enfeoflSng a tenant"; after such a feoffment the tenement is no longer ancient demesne, but ' is at the common law ' ^ The case also of the ' conventioners ' we may for a while postpone, for it is not a very important, though it is a very curious one. There remain two classes of tenants : those who hold in absolute vil- leinage and those who in Bracton's terms hold in privileged villeinage, or in villein socage, and who are villein sokemen and 'ascript to [i.e. irremovable from] the soil.' It is the men of this last class who use the little writ of right. The theory Such is the legal doctrine, and at some points it corre- bypraotice. sponds well with what we can learn of actual manorial arrange- ments. On an ordinary manor we rarely find more than two classes of tenants that can be called legal classes. We may find more than two economic classes: — in the common case there will be a class of virgaters, a class of half-virgaters, a class of crofters and cotters, and there may well be a class of tenants who pay rents and do but little labour, while other classes must do ' week work ' — we find censuarii as well as operarii. Also, as already said, we may find some individual tenants (but hardly classes of tenants) about whose tenure we may doubt whether it be freehold or no. Still in general there is a clear dichotomy; there are freeholders and then there is one other 1 Bract, f, 208 b. » Plaoit. Abbrev. p. 233 (Berka.) : ' et cum lioet euilibet capitali domino mutare antiquum dominioum in liberum tenementum et maxime dominus Eex.' » Ibid. p. 228 (Berks.) ; of. ibid. p. 241 (Ebor.); Y. B. 20-1 Edw. I. 378. CH. I. § 13.] The Ancient Demesne. 375 great class ; the latter may be called by different names ac- cording to the taste of the jurors ; its members may be termed servi, nativi, bondi, villani, custumarii, consuetudinarii; but legally their tenure is always the same, they hold according to the custom of the manor but their tenure is unrecognised by the king's courts. When however in turning over the Hundred Rolls we come upon a manor of the ancient demesne, we often see a more elaborate stratification, and in particular we read of sokemen; and conversely when we see this more elaborate stratification and discover sokemen we can usually learn that we are on the ancient demesne. Thus at Soham in Cambridge- shire besides ordinary freeholders there are free sokemen, bond sokemen, and villani, and at Fordham there are ordinary free- holders, sokemen and villani '; we hardly need the testimony of Domesday Book, ' Saham manerium Regis,' ' Fordeham do- minica villa Regis '^ In Huntingdonshire at Brampton there are freeholders, free sokemen and bond sokemen, at Alconbury numerous sokemen^; the natural inference may be verified in Domesday Book*. No one could look through the Oxford- shire surveys without singling out the manor of Bensington^ with its many liheri sokemanni, who are kept apart from its libere tenentes, and inferring that it was a manor of no ordinary kind. It is so with the court rolls. To say nothing of the 'little writs of right' which are stitched to their membranes, the rolls of a manor on the ancient demesne are distinguished by entries which show "that land is freely bought and sold °, and if in the Hundred Rolls we are told that the custumarii of Chesterton have sold their half-virgates, we hardly need look to see whether Chesterton be not dominica villa Regis '. We have however no little difiiculty in marking off Bracton's Difficulty ' absolute villeinage ' from his ' privileged villeinage.' His. test fyiS"! the is the ' certainty ' or ' uncertainty ' of the services due from the 'enants. tenant. But, as we have already seen, there lurks an ambiguity in these simple terms. If by saying that a tenant owes ser- vitia certa et nominata, we mean that the terms of his tenure are defended by legal remedies, remedies the administration of which either belongs to, or is at least supervised by, the highest 1 E. H. ii. 501-2. ^ p. b. L 189. » E. H. 607-13. *D. B. i. 203b. ■■> B. H. ii. 751. » Manorial Pleas, i. p. 106-124. ' E. H. ii. 402-3. 376 Tenure. [bk. il. court in the land, then we are treading a vicious circle: the remedies are given because the services are certain, the services are certain because the remedies are given. If on the other hand we look at the nature of the services, and say that they are certain if they can be defined without any reference to the lord's will, then we exact too much from those who are to claim the law's protection. The men of King's Eipton used the little writ of right, they used the Monstraverunt, they distrained their lord the abbot of Ramsey to answer them in the manorial court ; but according to an ' extent ' made by their representa- tives they were bound to work one day a week all the year round 'at whatever work he commanded them^ and three days a week during August and September. Of them it might well be said that when they went to bed on Sunday night they did not know what they would have to do on -Monday. In short, here as when we were outside the ancient demesne we come upon a matter of degree ; there is hardly a tenant of whom it can be said that no custom prevents him from having to do just whatever services the lord may command ; on the other hand there is hardly a tenant doing any substantial amount of agricultural labour, of whom it can be said that he has never to attend to the lord's will; 6ven the true free- holder has to do his boon works in autumn and the very essence of a boon work is that, within some spacious limit, described by such a word as ' harvest-time,' it must be done when it is asked for. How low down in the social and economic scale the protection given by the little writ and the Monstraverunt would go is excellently shown by the case of Kipton Regis. When pressed in pleading the tenants had to admit that ever since Henry I.'s day they had been paying arbitrary reliefs, arbitrary tallages, arbitrary merchet ; but still they used the little writ and the Monstraverunt, and if the abbot sought to make them work two days a week instead of one they had their remedy in the king's court'. Practical This being so, the lawyers never seem able to obtain any firm hold for their theory ; they can repeat that there are three classes of tenants, free men, villeins and sokemen, but how to draw the line between mere villeinage and the socage tenure of ancient demesne is a difiicult problem \ It is not as ^ Cart. Bams. i. 397 ; Select Fleas in Manorial Courts, 99-129. = Y. B. 21-2 Edw. I. p. 499 ; Y. B. 1 Edw. II. f. 19. difficulties. CH. I. § 13.] The Ancient Demesne. ^77 though we had merely to fix the distinction at some one point in a single scale of degrees ; there are many scales as well as many degrees. Besides the scale of agricultural labour with its infinite particulars, there are the scales of tallage, of relief, of heriot, of merchet. Even if, following Bracton, we say that the sokeman should at least be personally free and free to quit his tenement, the men of King's Ripton will appeal against our judgment, for at least they do all that free men ought not to do according to legal theories ; they pay arbitrary tallage, arbitrary merchet, they can not have their sons ordained, they may not leave the manor without the lord's licence; and yet when all these things have been proved against them, they go on using the little writ of right and distraining their lord**. Our law never surmounted these difficulties until tenure in villein- age was protected by the king's court under the name of copyhold tenure, and the line between common copyhold and the privileged villeinage of the ancient demesne had become of little significance. Even then many a curious, if unimportant, problem was left for lawyers to fight over. On the other hand to mark off the tenure of the sokeman, Sokemanry which is sometimes called 'sokemanry^,' from the fi-eehold *°^^'""'^®- tenure known as free socage was no very easy task — the very words that we have to employ in stating the problem show that this was so. The question whether ' the customary free- holders ' who appear in our later books were really freeholders and as such entitled to vote in the election of knights of the shire, the question which required for its solution, not merely the learning of a Blackstone, but the authority of an act of parliament ', was a question prepared of old. The sokeman on the ancient demesne can not usually be accounted a freeholder ; the liberi sokemanni are marked off in the ' extents ' from the lihere tenentes ; they use the little writ of right ; they can not 1 See Seebohm, Eng. Hist. Rev. vii. p. 453, an able review of Vinogradoff's book. Mr Seebohm thinks that the men of Eipton failed to prove that they were ' privileged villeins,' and no doubt it is true that in one sense they were convicted of being very ' ordinary villeins ' ; they owed hard and degrading services and were in many respects subject to ' the will of the lord.' But for all this they have got the little writ and the Monstraverunt and the abbot cannot make them work two days a week instead of one. So they are ' privileged villeins.' ^ Y. B. 21-2 Edw. I. p. 250 ' son barun tint en sokemanerie ' : 33-5 Edw. I. p. 557 'tyent en sokemanerie,' ' Stat. 31 Geo. 11. o. 14. 378 Tenure. [bk. ii. use the great writ or the possessory assizes which speak of seisin of free tenement. But is this so always ? There is extant an elaborate opinion given by a lawyer of Edward I.'s day, one Aunger of Ripon, and it is found in so many manuscripts that certainly it must have been considered very sound and useful ^ He says that, according to his masters, there are three cases in which a tenant, who holds part of the soil of the ancient demesne, may use the assize of novel disseisin. The first is the case of a freeholder who holds in an ancient demesne manor, and this we may pass by. The second is where one of the sokemen has enfeoffed some free ' outsider ' (liher homo extrtTisecus) and this feoffee has been left undisturbed for a while' by the lord; if after this he be ejected by the lord or any other, he can bring the assize. This case is quite intelligible because if my villein makes a feoffment, I must eject the feoffee at once or not at all, since otherwise he will be able to bring the assize against me'': — for the law of the thir- teenth century is rigorous against self-help. But thirdly, if any 'outsider' ejects a sokeman, the latter can bring the assize; this must be so (argues Aunger) for if someone ejects my mere villein, that villein by my leave will be able to recover in an assize; a fortiori we argue to the case of a sokeman whose estate is superior to that a villein '. Thus according to this re- markable opiaion the term 'free' when applied to a tenement is a relative term — we shall see in the next chapter that the term ' free ' when applied to a person is a relative term — for while as between himself and his lord the sokeman is no freeholder, still as regards all ' outsiders ' he can say that he has a free tene- ment and if ejected by them he can make good the assertion that he has been disseised de libero tenemento sua. Thus we see that the perplexing terminology of later days which knows of 'customary freeholds' which are 'privileged copyholds,' has a very ancient root. The lawyers of the very thirteenth century, or some of them, maintained that for certain purposes 1 Printed by Horwood, T. B. 20-1 Edw. I. p. xviii. The document is tran- Boribed along with the apocryphal statutes and is sometimes entitled Statutum de Antiquo Dominico. ■'■ Note Book, pi. 1203. 3 There seems to be a sad logical gap in this argument. The ejected villein, if with his lord's permission he brought an assize, would have to bring it in his lord's name, but Aunger seems certainly to suppose that the sokeman could bring it in his own name. CH. I. § 13. J The Ancient Demesne. 379 the sokeman had ' a free tenement '.' Nor is this strange, for the class which was using the little writ of right was a very miscellaneous one. If on the one hand it included men like those of King's Ripton who were stamped with every common mark of personal servility, it included on the other hand men who had valuable interests in their tenements, who sold and mortgaged them and settled them upon their families without any interference on the part of their lord. Such men are brought before us by a judgment of Edward I.'s day; when they sell their lands they do not even surrender them into the lord's hand, they make a feoffment as a freeholder would do, they make charters of feoffment, and then the alienation is enrolled in the manorial court; for all this however 'no writ runs among them but the little writ of rights' We must not here recount the subsequent fate of the Later tenants on the ancient demesne, nor would this be an easy practice, task, for it is clear that if the law itself did not undergo much change, the terms in which it was expressed were unstable. But we may note that an opinion grew up that the class protected by the little writ of right was really a class of free- holders, and then the inference was drawn that tenants who alienated their tenements, not in the freeholder's method by feoffment, but by a surrender into the hands of the lord, could not use the little writ of right because they were not free- holders. This doctrine comes to the front early in the fifteenth century, at a time, that is, when it was no longer capable of doing much harm to those ' sokemen of base tenure ' whom it excluded from the benefits of the little writ, since under the name of copyholders they were on the point of obtaining a perfectly adequate protection under other writs. But, as already said, the difficulty was prepared of old'. 1 So in later times we find the anomaly that if on the ancient demesne the lord disseises the tenant, the tenant may elect between an action in the manorial court and a (freeholder's) action in the king's court : T. B. 41 Edw. III. f. 22 (Mich. pi. 13) ; 41 Lib. Ass. f. 253, pi. 7. See Stat. 9 Hen. IV. o. 5, which shows that by naming the lord as a disseisor one could evade his jurisdiction and bring a dispute about a tenement on the ancient demesne before the king's court. 2 Plaoit. Abbrev. 246-7. 3 The most important case from the later middle ages seems to be Y. B. 14 Hen. IV. f. 34 (Hil. pi. 51). Hankford there fixes the terminology of later times ; for compare Fitz. Nat. Brev. f . 12 b. On the ancient demesne there are (6) sokemen of free tenure, who are free holders, who use the little writ and 380 Tenure. [bk. li. Why is a And now two questions may occur to us. First, why should treSment there be a peculiar class of customary tenants on those manors anoint which have been in the king's hand ever since the Norman demesne Conquest? Secondly, why should the king interfere for the necessary? ^ j' j o protection of customary tenants even when those manors have passed out of his own hand ? The second question is the more easily answered.. There has been an application of a very general rule of law which has come before us on more than one occasion. It may be thus stated : — the transfer of a lordship from one person to another should not affect the position of the tenants ; as regards them it is res inter alios cKta. When an honour escheats to the king, the tenants of that honour do not become liable to the special burdens which lie on those who are regarded as having held immediately of the crown from all time; the honour has still a notional existence for their benefit. Even so when the king parts with one of his ancient manors and puts a mesne lord over it, the tenants are neither to gain nor to lose by this transaction ; as regards them, their rights and duties, the manor is still conceived as part of the royal demesne. A bye motive may secure the observance of this general rule in the case that is now before us. The king hardly regards these manors as having utterly ceased to be his, for, to say nothing of a possible act of resumption ^ and to say nothing of escheats and forfeitures, many of these manors are let out to the mesne lords at substantial rents; they are held at ' fee farm ' and the king is concerned to see that the security for his rent is not impaired. It would be impaired were the tenants ill treated. This point, of importance in who, as it seems, convey by feoffment, and (c) sokemen of base tenure who hold by the rod, who surrender into the lord's hand, who are unprotected by the little writ, but sue for their tenements by bill [i.e. petition] in the lord's court. Of any (a) tenants by knight's service who may hold of an ancient demesne manor, no mention is here made, since their tenure is hardly conceived as a 'tenure in ancient demesne.' The doctrine of the thirteenth century makes a different distribution ; there are (a) freeholders, who may hold either by knight's service or in free socage and who have the ordinary freeholder's remedies ; (6) the tenants in privileged villeinage, who have the little writ and who usually convey by surrender; (c) the tenants in absolute villeinage, who at least in strict law have no protected tenant right. The question discussed in later days, ' In whom is the freehold? Is it in the lord, or is it in the tenant ? ' implies a conception of ' the freehold ' to which the lawyers of Henry III.'s day had hardly come. 1 Fleta, p. 3-4 ; Britton, i. 221-2. CH. I. § 13. J The Ancient Demesne. 381 social history, is brought out by many actions for ' waste ' sued by wards against their guardians ; the guardian has not merely cut down trees and pulled down houses, but he has ' destroyed,' ' exiled ' or impoverished the villeins '. Still the desire to keep well stocked and well managed the manors which have to supply the king with his fee farm rents, can serve but to give a little additional force to a general rule of law. It is a rule which cuts both ways. If we find tenants eagerly contending that they are on the privileged soil, we may also find, though hardly so often, a lord affirming that his manor is on the ancient demesne while the tenant denies this. The special law for the old patrimony of the king will profit now one and now the other partj to the tenure ". We come then to the main question, why on those manors The king which have never left the king's hand is there a class and a the very large class of tenants such as are hardly to be found else- sett?ement. where, a class of ' sokemen,' holding in ' privileged villeinage.' All the evidence that we have conspires to tell us that there has been less change on these manors than elsewhere, that the phenomenon before us is an unusual degree of conservatism. In the first place the very name of ' ancient demesne ' shows us that the law supposes itself to be conservative. It is maintain- ing the conquest settlement. To decide the question whether a manor be ancient demesne or no it will go back far beyond all ordinary terms of limitation and prescription, far beyond 'the beginning of legal memory,' it will be content with no evidence save that of the great survey. Nay in theory the ancient demesne gained its specific quality before Domesday Book was made. The lawyers of the fourteenth century had some doubts as to the exact moment of time at which the manor must have been in the king's hand in order to make it ancient demesne for good and all, and the rule of evidence ' See Note Book, pi. 632: 'destruxit duos villanos divites ita quod pauperes effecti sunt ' ; pi. 691 : ' talliavit quendam villanum etc. ita quod ipsum fugavit.' = The lord distrains the tenant for services ; the tenant brings a replevin ; the lord pleads ancient demesne : Y. B. 12 Edw. n. 384 ; Y. B. 29 Edw. III. f. 9. If the question is between sokemanry and mere villeinage the tenant will desire to show that the land is ancient demesne ; but if the question is between sokemanry and ordinary freeholding then this contention will come from the lord, for he would rather that a case in which he is concerned should come into the manorial court than that it should go before the king's justices. 382 Tenure. [bk. ii. that they had adopted, namely that no testimony was admissible save that of Domesday Book, must have tended to cause some little confusion^ still on the whole they think that the privileged manors are 'the manors of St Edward". In this, though hardly in any other, context will they go behind the Norman Conquest. In the second place, Bracton regards these sokemen as an ancient race ; it holds its lands under a great concession made to it soon after the Conquest. If new settlers come into the ancient demesne, whatever rights they may gain under agreements made with their lords, they are not sokemen nor entitled to the peculiar privileges of sokemen. This theory, however difficult of application two centuries after the Con- quest, was no idle theory ; we are constantly reminded that the special characteristics of the ancient demesoe, if they inhere in certain tenements, inhere also in 'the blood of the sokemen.' Thus when the men of Tavistock have recourse to a Mons- travenmt it is objected that many of them are adventitii ^. Thus the men of King's Ripton hold themselves to be a privileged race; even the ordinary rules of inheritance must yield when the choice is between a claimant who is not ' of the blood of the vill ' and one who is '. Thus again Aunger of Ripon treats the little writ of right as a remedy which has place only where both parties are bom sokemen, or where one is a born sokeman and the other the lord ; against an extrinsecus or forinsecus there may be an assize *. Thirdly, without examining at any ' T. B. 15 Edw. n. f. 455 ; Y. B. 13-4 Edw. III. (Pike), p. 102 ; Fitz. Abr. Aumien Dememe, pi. 15 ; Y. B. 49 Edw. III. f. 22-3 ; Vinogradofl, p. 90. The rule as to the exclusive use of Domesday may well be of comparatively late growth • in one of the earliest cases the sheriff is directed to inquire whether the land be ancient demesne or no; Placit. Abbrev. p. 119 (Staf.). In some cases the appeal to Domesday would have been misleading. No one, for example, could discover from that record that the manor of King's Eipton was ancient demesne ; probably it is there reckoned as a member of an adjoining manor, still its lord when at war with his refractory tenants raised no question as to its quality ; Select Pleas in Manorial Courts, i. p. 99. 2 Placit. Abbrev. 270-1 ; Vinogradofl, 118-9. Vinogradoff's criticism of this decision seems unnecessarily severe. AU that can be said against the judges is that they apparently gave one bad reason for a sound judgment. A jury had found that the men of Tavistock were of servile condition ; this was foundation enough for the decision. ' Select Pleas in Manorial Courts, i. 105-6. - Y. B. 20-21 Edw. I. p. xix. Cf. Fleta, p. 4: 'Provisum est etiam quod hniusmodi tenentes inter se tantum unicum benefioium habeant recuperationis OH. I. § 13. J The Ancient Demesne. 383 length the terminology of Domesday Book, we can say at once that the ancient demesne manors of the thirteenth century have preserved, while other manors have lost, some features which in the Conqueror's survey are by no means peculiar to the royal villages ; it is on the ancient demesne that we find more than one legal class of tenants who are not freeholders ; it is on the ancient demesne that we find large groups of tenants still rejoicing in the ancient name of sokemen. Why has the king here shown himself as a conservative ? Why the Certainly we can not answer that it is in the nature of kings to teots his be conservative or solve the problem by an allusion to the *^"''° ^' inertness of a government bureau. In matters of law the royal power has been the great disturbing force, the king has been the radical reformer. Of course it is well to observe that on a royal manor there hardly can be any of those ' half- rights ' (if such a term may be invented) that may exist elsewhere. The custom of a royal manor, if the king recognises it at all, must stand on much the same level as the law of the land ; it will be administered by royal officers and in the last resort it will be administered by royal officers who happen to be the judges of the supreme court of law. Still the king suffers this, and holds himself bound to suffer it, and his judges, for example, Bracton, say that he is bound to suffer it, say that the sokemen are irremovable so long as they do their services, say that their services are servitia certa et nominata. What we have to attribute to the king in a special degree is no mere inertness, nor is it enlightened self-interest (for this we should look to the monastic rather than to the royal estates) but it is a respect for custom, an acknowledgment that the rules ad- ministered in his manorial courts have all the force of law. Perhaps it is no paradox that he keeps the custom best because there can be no talk of his being forced to keep it. Another lord will draw a very firm line between the rights of his free- hold tenants, which he can be compelled to observe, and the rights, if such they are to be called, of his customary tenants, which he can ignore with impunity, and as men more and more come to regard a remedy in the king's supreme court as a tenementoTum per quoddam breve de recto clausum ' ; Bjittou, ii. 13 : ' le bref de dreit olos pledable par baillif del maner de tort fet del un soketnan al autre,' See also Y, B, 21-3 Edw. I. p. 501, 384 Tenure. [bk. ii. necessary consequence of every would-be right, he will begin to reason that there is no right where there is no compulsion. It is otherwise with the king; if he ejects his sokeman no action will lie against him ; none will lie against him if he disseises the palatine earl ; in either case the person wronged can but petition for right ; in either case the wrongdoer must answer for his act before the one tribunal competent to try him, he must appear before the throne of God. Morally the king can never be as irresponsible as another lord of a manor is, just because legally no bounds, or no definite bounds, are set to his irresponsibility. Men will not easily distinguish between his two capacities ; if a landlord, he is still the king, the su- preme judge over all men, the fountain of justice; he has sworn to do justice; the abbot, the baron, the knight have taken no such oath. We may add that the king is bound to maintain the laws and customs of ' the glorious king St Edward his predecessor.' Should he not then begin at home ? It is as the tenants of St Edward that the men of the ancient demesne claim his protection '. Customary Speaking generally we have said that outside the ancient freehold. , ,, , p , p , ,,- demesne all the tenures of the non-freeholding peasantry are m law one tenure, tenure in villeinage. This is the doctrine of the lawyers of the thirteenth century, and on the whole it is well borne out by the manorial ' extents.' Economically considered there are infinite modes of peasant tenure, for the tenement may be a large or a small one, the agricultural services may be light or heavy, ' week work ' may be exacted or money may be taken ; but just as the modem lawyer makes ' leasehold tenure ' cover such economically different things as a lease of a house in London and a lease of a farm, a lease for a year and a lease for a thousand years, beneficial leases and leases at rack rent, so all these modes of peasant tenure can be brought under one head. The legal quality which they have in common and which keeps them together, is, we may say, their customary quality ; they are not protected by the law of the king's courts, but they are protected, more or less perfectly, by the customs administered in the manorial courts. Legally they form one tenure, because in all cases the kind of protection that they receive is the same kind of protection. In this quality there are no degrees, or ' See the coronation oath of Edward II., Stubbs, Const. Hist. ii. 317. CH. I. § 13.] The Ancient Demesne. 385 none that can be fixed with legal precision. Of course there are good and bad landlords, landlords who respect the custom, landlords who break it, conservative landlords and improving landlords; but all this is no matter of law. What we do not see is that one and the same landlord in one and the same manor admits that he has divers classes of non-freeholding peasant tenants, which differ from each other in the validity of their tenure; what we do not see is a 'privileged' beside an ' absolute ' villeinage. Still there are exceptions, and perhaps, were they all collected, they would form a very considerable mass, in particular if the documents concerning Kent, East Anglia and Northumbria were patiently examined. In a cartulary of the twelfth century, in the Black Book of Peter- borough, we still find on one and the same manor various classes of tenants bearing the names which are familiar to all who read Domesday Book. There are large groups of sochemanni who are kept well apart from the villani, but who very probably could not have made good a claim to be considered as freeholders in the king's court'. Even in the Hundred Rolls we may, though as a rarity, find a class of sokemen marked off from the freeholders on the one hand and the tenants in villeinage on the other, though the manor is not on the ancient demesne. It is so at Swavesey in Cambridgeshire ; when Domesday Book was made Count Alan held it, and it is still held by Ellen de la Zouche ' as of the honour of Britanny ' ; she has a considerable number of freehold tenants, a group of villani who hold de villenagio, a group of cotters; but besides these a group of sokemanni who hold sokelond^. In the north the 'tenants in drengage' are severed from the freeholders and from the 'tenants in bondage',' and if the Kentish 'gavelmen' succeeded in making 'gavelkind' a freehold tenure, and in some respects a particularly privileged freehold tenure, since peculiarly cheap and easy remedies for its protection were allowed them, their tenure was still in some sort a customary tenure and was spoken of as though it were not in all respects absolutely ' free'; it may be contrasted with ' frank fee' just as the tenure of the 1 Chron. Petrob. p. 160 : ' et xi. sochemanni ... .in estate faoient per xv. dies quicquid iusserit dominus.' 2 E. H. u. 469-470. 3 Boldon Book, and Bp. Hatfield's Survey, e.g. pp. 29-30. P. M. 25 386 Tenure. [bk. ii. king's sokemen may be contrasted with ' frank fee\' To this we must add that modern courts of law have from time to time been puzzled by the appearance before them of classes of tenants seeming to occupy a middle state between that of freeholdeirs and that of copyholders ; they are said to hold ' according to the custom of the manor,' but not 'at the will of the lord'; they convey their tenements sometimes by surrender and admittance in the lord's court, sometimes by a deed of bargain and sale followed by an admittance ; they are often subject to some of the usual burdens of copyhold tenure. They have come sometimes from manors which formed part of the ancient demesne, sometimes from other manors ; in particular they have often come from a part of England in which, if Domesday Book be the final test, there can be no ancient demesne, namely, from the northernmost counties. Now it would be foolish to argue that the ancestors in law of any given group of such tenants enjoyed in the thirteenth century a condition superior to. that of the ordinary tenants in villeinage. The full formula which is supposed to describe the tenure of the copyholder — ' to hold at the will of the lord according to the custom of the manor ' — is one which is seldom found on the earliest court rolls. Any set of early court rolls is likely to show many variations in the phrases used about one and the same set of tenements, and in any particular case the omission of all allusion to the will of the lord from the formula which becomes current in the manorial court or the steward's office, may be a phenomenon of the fourteenth, fifteenth or even of some later century, and a phenomenon due to an accident. An example may show how rash such inferences about the past history of any one manor may be. Tlje Dean and Chapter, successors of the Prior and Convent, of Durham have (it is said) no copyholders, having succeeded in proving that their peasant tenants held only for life and without any right of renewal. The Bishop of Durham has, or lately had, plenty of copyholders. But in all probability the explanation of this difference is to be found in what from our point of view are comparatively modern times. The convent, ' Plaoit. Abbrev. p. 238 : in 1298 the whole county [court] of Kent is asked the question how tenements held in gavelkind can be ohaoaged into liberum feodum. Spelman, Gloss, s. v. Sokemamia gives from a Eegister of Christ Church, Canterbury, a remarkable classification of tenures. CH. I. § 13. J The Ancient Demesne. 387 like many other religious houses, took steps to prevent its villein or 'bondage' tenements from being heritable in fact; the ' corporation sole ' was less far-sighted than the ' corporation aggregate'.' And again the modern cases which introduce us to ' customary freeholders ' seldom tell us of more than one class of customary tenants on the manor that is in question : — on that manor there are no tenants who are said to hold ' at the will of the lord.' Still when all the modern evidence is taken in the mass, it supports the inference that we shoiild have drawn from - the state of the ancient demesne. That inference is that the very general absence in the thirteenth century of any class of tenants mediate between the freeholders, who enjoy full and immediate royal protection, and the customary tenants, who (as men are beginning to say) hold at the will of the lord, is of recent origin, the effect of legal rules and legal theories rather than of ancient economic facts. With its newly centralized royal justice the law of the No place thirteenth century has no place for the sokeman. Even when he tenure is preserved on the royal demesne, it hardly knows how to deal ^eXad with him, can hardly decide whether he is a freeholder, thinks »"? . ■^ villemage. that he may be a freeholder as regards some and not as regards others. Outside the ancient demesne it proposes the dilemma, ' Protected by the king or not protected by the king, and if not protected by him, then held at the will of the lord.' But if we strive to go behind the amazing activity of the king's court, as behind a new thing, if we think of the freeholder as having to go in the first instance to his lord's court and hardly able as a matter of fact to get much further, then the edge of the dilemma is blunted. That the application of this logical weapon did some immediate harm to the higher classes of peasants can hardly be doubted. Our legal terminology does indeed suggest that not a few of them, in particular not a few of the sokemen, fell at once on the right side of the line. How else can it happen that ' free socage ' became the name of a free tenure, a tenure by which even in Bracton's day barons and knights are well content to hold? But, on the whole, the doctrine of the lawyers seems to have been that any considerable amount of labour service must be villein service, must make the tenement unfree and unprotected, because it cannot but be 1 Durham Halmote EoUs, Introduction, pp. xxxv.-xxxvii. 25—2 388 Tenure. [bk. u. service which in many particulars will be done at the will of the lord. Such a doctrine must have condemned many a sokeman of the twelfth century to hold in villeinage. The But of the past history of those tenures which are not tionCTs/" freehold we can not yet speak at length, for however sharply the lawyers may contrast the two, villein tenure is, as a matter of fact, closely connected with villein status, a topic that must come before us in the next chapter. We have however yet to say a few words about a class of tenants who came under our notice when we were transcribing Bracton's account of the ancient demesne. Marked off from the 'privileged villeinage' of the sokeman stands the tenure of certain adventitii, who, though they perform services similar to those of the sokemen, do not belong to that privileged race ; they are regarded as 'outsiders' who have recently come to the manor, who have taken tenements under agreements (conventiones), who have to perform agricultural services and who are protected by law, but their title to protection is given them not by the custom of the manor, but by the terms of the agreement ; we have called them ' conventioners'.' Bracton's own opinion seems to be that their rights are not ' real ' rights ; on the contrary, they are personal, contractual rights, to be enforced not by possessory or proprietary actions but by an action on the covenant. However, he admits that others thought differently, would have allowed these men the possessory assizes and therefore, for this would follow, would have treated them as freeholders. Bracton's doctrine about this matter represents, at least so we may guess, rather a passing inclination of some justices than a settled practice. Two great causes made against its perdurance. Tn the first place, the theory that the sokemen were a privileged race, that the privilege ran, if we may so speak, rather in their blood than in their tenure, though we may find many traces of it, could not be permanently maintained. The day for racial laws was past, and as a matter of practice no barrier could be kept up between the natural progeny of the sokemen and these 'adventitious' conventioners. In the second place, the whole ' Braoton, f. 7, says of them ' tenent de dominico.' This phrase here and in some other places seems to mean that they hold land which until lately was in the lord's hand, and had once been part of his demesne in the narrowest sense of that term. CH. I. § 13.J The Ancient Demesne. 389 tendency of English land law was setting very strongly in favour of the principle that any one who has a right to be in the occupation of land has a right in the land, and whilst in occupation has a true possession of the land. This is seen most clearly iu the treatment of tenants for terms of years. For a short while an attempt had been made to treat them as having rights, but merely personal, contractual rights; but before Bracton wrote the attempt had broken down, and the termor was considered as possessing the land and as having rights in it. And so with these conventioners : — Bracton's suggestion is very interesting, especially because he thinks that even an unfree man may have a remedy upoa a covenant against the covenantor; but we cannot find that it struck any deep root in our law*. On the whole, outside the ancient demesne the law maintains the dilemma, ' Freehold, or unprotected by law ;' while even on the ancient demesne, 'Freehold, Absolute Villeinage, Privileged Villeinage (Sokemanry)' exhaust all the possible cases. Thus at the end of this prolonged account of the law ofConciu. tenure we are brought back to a remark with which we started. Everywhere we see at first sight a simplicity that is truly marvellous. All the variegated facts of laadholdership have been brought under the sway of a single formula, ' the formula of dependent tenure,' and the only modes of tenure which the law distinguishes are very few. If the reader does not think that our law is simple, he should look abroad or he should look at the facts which our law has endeavoured to master. Has endeavoured to master, we say, for it has not succeeded at every point in its grand undertaking. It has dealt rudely with the facts, it has neglected many a distinction of great social and economic importance, it has driven its trenchant dilemmas through the middle of natural classes and athwart some lines of customary morality; but it has been bold and strong and therefore simple, 1 Concanen's Eeport of Howe v. Brenton (1830) gives us interesting glimpses of large classes of ' conventioners ' on some of the Cornish manors. When they first appear they seem to be holding under conventiones, that is to say, leases for short terms of years. Bracton does not say vfhether the tenants whom he describes hold for terms of years. A lease for years is very often called a cmventio, and in Bracton's day the writ of covenant existed chiefly for the benefit of termors. CHAPTER II. THE SORTS AND CONDITIONS OF MEN. Law of Of the divers sorts and conditions of men our law of the condition, thirteenth century has much to say ; there are many classes of persons which must be regarded as legally constituted classes. Among laymen the time has indeed already come when men of one sort, free and lawful men {liberi et legales homines) can be treated as men of the common, the ordinary, we may perhaps say the normal sort, while men of all other sorts enjoy privileges or are subject to disabilities which can be called exceptional. The lay Englishman, free but not noble, who is of full age and who has forfeited none of his rights by crime or sin, is the law's typical man, typical person. But besides such men there are within the secular order noble men and unfree men ; then there are monks and nuns who are dead to the world; then there is the clergy constituting a separate 'estate'; there are Jews and there are aliens ; there are excommunicates, outlaws and convicted felons who have lost some or all of their civil rights ; also we may here make mention of infants and of women, both married and unmarried, even though their con- dition be better discussed in connexion with family law, and a word should perhaps be said of lunatics, idiots and lepers. Lastly, there are 'juristic persons' to be considered, for the law is beginning to know the corporation. But if for a while we fix our attention on the lay order, it may seem to us that, when compared with the contemporary law of France and Germany, our law of status is poor ; in other words, our law has little to say about estates or ranks of men. Men are either free men or serfs ; there is not much more to be said. When compared with tenure, status is unimportant. CH. IT. § l.j The Earls and Bartons. 391 This much we misrht learu from the history of a technical Status and estate term. Our modem English writers on jurisprudence are con- stantly put to shifts for a word which shall translate the Latin status and frequently have to leave it untranslated ; estate would make us think of rights in land, and condition also has hard work to do in our law of property and of obligations. The fate in England of the word status or estate is very curious. Bracton could still sharply oppose it to rights in land. A favourite maxim of his is that a man's free or villein tenure of a tenement does not affect his free or villein estate'. But very soon after his death we hear of a man having a status in fee simple or a status for life, and though such a phrase as 'the three estates of the realm' may endure, and our church may bid us pray 'for all estates of men,' still the English lawyer when he hears of estates will think first of rights in land, while the English layman will, like enough, think of land itself, of fields and houses. This means that our land law has been vastly more important than our law of ranks. And so it is at an early time ; we read much more in the law-books of tenants by knight's service, serjeanty, burgage, socage, than of knights, Serjeants, burgesses and sokemen ; nay, even the great distinc- tion between bond and free is apt to appear in practice rather as a distinction between tenures than as a distinction between persons. § 1. The Earis and Barons. Our law hardly knows anything of a noble or of a gentle The class ; all fi-ee men are in the main equal before the law. For a moment this may seem strange. A conquered country is perhaps hardly the place in which we should look for an equality, which, having regard to other lands, we may well call exceptional. Yet in truth it is the result of the Conquest, 1 Bracton will occasionally use the word status to stand for the whole mass of a person's rights, even with special reference to his proprietary rights in land, as when (f. 423 b) he discusses the maxim that an infant's status is not to be changed ; but he chiefly uses the word when discussing personal freedom and personal slavery; these are the two great estates. In one passage (f. 40b, line 23) he seems to use the word statm in its later meaning—' Si autem totum non habuerit statum transfert id quod habet ' ; but the mss. show that he wrote not stdtum, but statim. 392 The Sorts and Conditions of Men. [bk. ii. though a result that was but slowly evolved. The compiler of the Leges Henrici would willingly have given us a full law of ranks or estates of men; but the materials at his command were too heterogeneous ; counts, barons, earls, thegns, Norman milites, English radknights, vidames, vavassors, sokemen, villeins, ceorls, serfs, two-hundred men, six-hundred men — a text writer can do little with this disorderly mass. But a strong king can do with it what he pleases ; he can make his favour the measure of nobility ; they are noble whom he treats as such. And he does not choose that there shall be much nobility. Gradually a small noble class is formed, an estate of temporal lords, of earls and barons. The principles which hold it together are far rather land tenure and the king's will than the transmission of noble blood. Its members have political privileges which are the counterpart of political duties; the king consults them, and is in some sort bound to consult them, and they are bound to attend his summons and give him counsel. They have hardly any other privileges. During the baron's life his children have no privileges ; on his death only the new baron becomes noble. Pi'T^ieges The privileges of the earl or the baron are, we say, ex- Barons, tremely few. Doubtless from of old every free man was entitled to be judged by his peers', that is to say, was entitled to insist that those who were to sit as his judges should not be of a legal rank lower than his own. Under the dominance of the law of tenure this rule would take the form that a vassal is not to be judged by sub-vassals. So long as the king's court was a court of tenants in chief any man would have found there those who were at least his equals, and even in a county court there would have been barons enough to judge any baron. As the administration of royal justice gradually became the func- tion of professional lawyers, the cry for a iudicivmi parivm, was raised by the nobles, and in words this was conceded to them °. For a long time however the concession had no very marked effect, because the court held coram Rege, though for every-day purposes but a bench of professional justices, might at any moment assume a form to which no baron could have taken exception ; even a parliament to which all the barons had been ' Leg. Hen. o. 31, 32, 33. ' Magna Carta (1215), c. 39. See above, p. 152. CH. II. § 1.] The Earls and Barons. 393 summoned might still be regarded as this same court taking for the nonce a specially solemn form. And the meaning of the rule was not very plain. On the one hand we hear the assertion that even in civil suits the earl or baron should have the judgment of his peers', on the other hand Peter des Roches, the king's minister, can say that the king's justices are the peers of any man', and the very title of the 'barons' of the Exchequer forbids us to treat this as mere insolence. And so Bracton gives us no doctrine as to the privilege of the barons. He does recognize the distinction between the king's court of justices and the king's court of 'peers,' but for the sake of a quite other doctrine, which left but few traces in later law. When there is a charge of treason the king himself is the accuser, and life, limb and inheritance are at stake ; therefore it is not seemly that the king, either in person or by his justices, who represent his person, should be judge ; so Bracton throws out the suggestion that the cause should come before the 'peers'.' We have here no privilege of peerage, but a special rule for all cases of high treason, based on the maxim that no one should be judge in his own cause. Under the Edwards the privilege of peerage was gradually ascertained, as the court of law held coram Rege, which by this time was known as the King's Bench, became more utterly distinct from the assembly of the barons. But in the end the baron had gained very little. If charged with treason or felony he was tried by his peers; if charged with a misdemeanour (transgressio), if sued in a civil suit by high or low, if the king challenged his choicest fran- chises, there was no special court for him ; he had to abide the judgment of the king's justices*. A certain freedom from arrest in civil causes we may perhaps allow him ; but in 1 Note Book, pi. 1213 (a.d. 1236-7) : the Earl of Chester in a civil suit claims the judgment of his peers, but abandons this claim in order to put forward another, namely, that the plea being a ' common plea ' should not he heard coram Rege. Plaoit. Abhrev. p. 201 (a.d. 1281) : the Earl of Gloucester being sued for his franchises in Glamorgan insists that he ought to have the judgment of his peers, namely, the lords marchers. " A.D. 1233 ; Mat. Par. iii. 252, 257 ; vi. 73 ; Note Book, pi. 857. s Bracton, f. 119. * In the fourteenth century it was held that a peer in a civil suit was entitled to have at least one knight on the jury. But this can have nothing to do with the iudicium parium, for the knight is neither the peer's peer nor his judge. See Y. B. 12-3 Edw. III. (ed. Pike), p. 291. 394 The Sorts and Conditions of Men. [bk. ii. Bracton's age arrest in civil causes was as yet no common event. That the tenant in chief could not be excommunicated without the king's leave was a privilege of the king rather than of the baronage. One other privilege the baron had, but it was of questionable value. When adjudged to be in the king's mercy the amount of the amercement was fixed, or 'affeered,' not by his merely ' free and lawful ' neighbours but by his peers. For this purpose, however, his peers were found in the 'barons' of the Exchequer' and these experts in finance were not likely to spare him^ There are a few little rules of procedure which distinguish the noble from the non-noble. Thus we are told that a summons to court should allow an earl one month, a baron three weeks, a free man a fortnight'; and we may see some traces of a rule which exempts a baron from the necessity of swearing*. Even the members of the king's family are under the ordinary law, though in their ' personal ' actions they have the same benefit of expeditious procedure that is enjoyed by merchants^ Very different of course is the case of the king, who in all litigation ' is prerogative.' § 2. The Knights. Knights Below the barons stand the knights ; the law honours them by subjecting them to special burdens, but still knighthood can hardly be accounted a legal status. In the administration of royal justice there is a great deal of work that can be done only by knights, at all events if there are knights to be had. Four knights, twelve knights, are constantly required as repre- sentatives of the county court or as recognitors. For some purposes mere free and lawful men will serve, for others knights must be employed. On the whole we may say that knights are required for the more solemn, the more ancient, the more decisive processes. To swear to a question of possession, free and lawful men are good enough; to give the final and con- ' Bracton, f. 116 b. 2 Madox, Exoh. i. 530-9 : the Abbot of Croylaud and Thomas de Furnivall protest that they are not barons in order to escape from heavy amercements. s This from the thirteenth century version of Glanvill contained in MS. Camb. Univ. Mm. i. 27, f. 30 b. " Bracton, f. 387 b-8. » Bracton, f. 444. CH. II. § 2.] The Knights. 395 elusive verdict about a matter of right, knights are needed. They are treated as an able, trustworthy class, but we no longer find any such rules as that the oath of one thegn is equivalent to the oath of six ceorls. In administrative law therefore the knight is liable to some special burdens, in no other respect does he differ from the mere free man; even military service and scutage have become matters of tenure rather than matters of rank, and though the king may strive to force into knight- hood all men of a certain degree of wealth, we have no such rule as that none but a knight can hold a knight's fee. Still less have we any such rule as that none but a knight or none but a baron can have a seignorial court. § 3. The Unfree. In the main then all free men are equal before the law. The Just because this is so the line between the free and the unfree seems very sharp. And the line between fi-eedom and unfree- dom is the line between freedom and servitude'. Bracton accepts to the full the Roman dilemma, ' Omnes homines aut liberi sunt aut servi^' He will have no mere unfreedom, no semi-servile class, no merely praedial serfage, nothing equiva- lent to the Roman colonatus" All men are either free men or serfs, and every serf is as much a serf as any other serf*. We use the word serf, not the word slave; but it is to be re- membered that Bracton had not got the word slave; he used the worst word that he had got, the word which as he well knew had described the Roman slave whom his owner might kill. And the serf has a dominus; we may prefer to render this by lord and not by master or owner, and of course it is well worthy of observation that medieval Latin can not express this distinction; if the serf has a dominus, the palatine earl, nay, the king of England, so long as he is duke of Aquitaine, has a dominus also, and this is somewhat in the serf's favour; but still Bracton uses the only words by which he could have ' Here again we must refer to Vinogradoff's work for the discussion of many details. See also Leadam, in Proceedings of Boyal Hist. Soo. vi. Id?, and in Law Quarterly Eev. ix. 348. 2 Bracton, f. 4 b. ^ Bracton, f, 4 b. •* Bracton, f. 5 ; Fleta, pp. 1, 239, § 28 ; Britton, i. 197 and the editor's note. 396 The iSorts and Conditions of Men. [bk. ii. described a slave and a slave-owner. True that servits is neither the commonest nor yet the most technical name for the unfree man ; more commonly he is called villanus or nativus, and these are the words used in legal pleadings ; but for. Bracton these three terms are interchangeable, and though efforts, not very consistent or successful efforts, might be made to dis- tinguish between them', and some thought it wrong to call the villeins serfs", still it is certain that nativas always implied personal unfreedom, that villanus did the same when employed by lawyers (in manorial surveys in which tenure rather than status is described, free men holding in villeinage may occa- sionally have been classed as villani), and that Bracton was right in saying that the law of his time knew no degrees of personal unfreedom. Even in common practice and by men who were not jurists the word servus was commonly used as an equivalent for nativus or villanus. The jurors of one hundred will call all the unfree people servi, while in the next hundred they will be villani". In French villein is the common word ; but the feminine of villein is nieve (nativay. General There are no degrees of personal unfreedom ; there is no serfage, such thing as merely praedial serfage. A free man may hold in villeinage; but that is an utterly different thing; he is in no sort a serf; so far from being bound to the soil he can fling up his tenement and go whithersoever he pleases". In later centuries certain niceties of pleading gave rise to the terms ' villein in gross ' and ' villein regardant ' and in yet later times, when villeinage of any kind was obsolescent, these were supposed to point to two different classes of men, the villein regardant being inseverable from a particular manor while the villein in gross might be detached from the soil and sold ' See the attempts of John of Longueville, Nichols's Britton, i. 195 note ; Vinogradoff, p. 45 note. " Mirror, o. 2, sec. 28 ; c. 5, sec. 1. 3 For example, in the Hundred EoUs for Oxfordshire (E. H. ii. 688 fol.). * The English bondman may have been common, for we often read of iondi or bondes ; but this word covers an instructive ambiguity ; a Scandinavian word, meaning man and hence peasant, has been misunderstood to imply bondage, i.e. servility. See Vinogradoff, p. 145. Britton writing in French frequently used the word serf, and there is no sufficient reason for denying that this word was used also in English speech. We shall use it as a translation of Bracton's servus. ' See above p. 372 as to Bracton's odd use of the term ascriptitius. CH. II. § 3.j The. Unfree. 397 as a chattel. The law of Bracton's time recognises no such distinction '. As a matter of fact and a matter of custom English serfage may well be called praedial. In the first place, it rarely if ever happens that the serfs are employed in other work than agriculture and its attendant processes ; their func- tion is to cultivate their lord's demesne. In the second place, the serf usually holds more or less land, at least a cottage, or else is the member of a household whose head holds land, and the services that he does to his lord are constantly regarded in practice as the return which is due from him in respect of this tenement or even as the return due from the tenement itself; such services, as we have already seen, are often minutely defined by custom. In the third place, his lord does not feed or clothe him; he makes his own living by cultivating his villein tenement, or in case he is but a cottager by earning wages at the hand of his wealthier neighbours. In the fourth place, he is seldom severed from his tenement ; he is seldom sold as a chattel, though this happens now and again ^ ; he passes fi^om feoffor to feoffee, from ancestor to heir as annexed to the soil. For all this, the law as administered by the king's court permits his lord to remove him from the tenement. It could hardly have done otherwise, for he held in villeinage, and even a free man holding in villeinage could be ejected from his tenement whenever the lord pleased without finding a remedy before the king's justices. But as to the serf, not only could he be removed from one tenement, he could be placed in another tenement ; his lord might set him to work of any kind ; the ' We hold tMs to have been fully proved by Hallam, Middle Ages, ed. 1837, vol. iii. p. 256, and by Vinogradoff, pp. 48-56. But they are perhaps inclined to give too late a date to the appearance of the idea that there are two classes of villeins. Thus in Y. B. 1 Hen. IV. f. 5 (Mich. pi. 11) a nieve brings an appeal for the death of her husband against her lord ; it is argued that if the lord be convicted, the appellant will become free ; to this it is replied. Not so, if she be regardant to a manor, for in that case she will be forfeited and become the king's nieve ; but otherwise would it be if she were a villein in gross. 2 See e.g. Cart. Glouc. ii. 4 : the Bishop of Hereford grants a villein to the Abbey of Gloucester. Cart. Burton, p. 75, grant of a nativus by the Abbot of Burton to the Abbess of Polesworth. Note Book, pi. 1103 ; a villein sold for 40 shillings ; this price will hardly cover a tenement. Eegister of Abp. Gray (Surtees Soc), p. 282 ; the Archbishop of York buys two nativi for 20 pounds. Selby Coucher Book, i. 278 ; a nativus is sold for four shillings and a talentum. Ninth Eep. Hist. MSS. Ap. 1, p. 32 ; a man and his sons are sold to the Chapter of St Paul's for 60 shillings, a mare, a, cart and 28 sheep. 398 The Sorts and Conditions of Men. [bk. ii. king's court would not interfere ; for he was a servus and his person belonged to his lord ; ' he was merely the chattel of his ' lord to give and sell at his pleasure ' '. Eeiativity But whatever terms the lawyers may use, their own first of serfage. . . . , . principles will forbid us to speak of the English 'serf as a slave : their own first principles, we say, for what we find is not a general law of slavery humanely mitigated in some details, but a conception of serfdom which at many points comes into conflict with our notion of slavery. In his treatment of the subject Bracton constantly insists on the relativity of serfdom ; serfdom with him is hardly a status ; it is but a relation between two persons, serf and lord ; as regards his lord the serf has at least as a rule no rights, but as regards other persons he has all or nearly all the rights of a free man ; it is nothing to them that he is a serf ^. Now this relative serfdom we cannot call slavery. As regards mankind at large the serf so far from being a mere thing is a free man. This however seems to be the main principle of the law of Bracton's day. We must now examine each of its two sides, the serf's rightlessness as regards his lord, his freedom or ' quasi-freedom ' as regards men in general ; it will then remain to speak of his relation to the state. (1) The In relation to his lord the general rule makes him rightless. reiltiSuto Criminal law indeed protects him in life and limb. Such protection however need not be regarded as an exception to the rule. Bracton can here fall back upon the text of the Insti- tutes : — the state is concerned to see that no one shall make an ill use of his property \ Our modem statutes which prohibit cruelty to animals do not give rights to dogs and horses, and though it is certain that the lord could be punished for killing or maiming his villein, it is not certain that the villein or his heir could set the law in motion by means of an 'appeal*'. The 1 Britton, i. 197. * Bracton, f. 197 b, line 3, appeals to common opinion-; 'dioitur enim vulgariter quod quia potest esse servus uuius et liber homo alterius. ' He uses the same phrase, f. 25, line 13, f. 196 b, line 36. On f. 198 b, he says, ' Cum quis servus sit, nou erit servus cuilibet de populo.' Britton, i. 199 ■ Fleta p 111 (§ 15). 8 Bracton, f. 6, § 3 ; f. 155 b, § 3. Britton, i. 195 and the LongueviUe note. * Bracton, f. 141 : the serf only has an ' appeal ' in case of high treason. For later law as to appeals by villeins see Y. B. 18 Edw. IIL f. 32, Mich. pi. 4 (which appears also as 11 Hen. IV. f. 93, Trin. pi. 52) ; 1 Hen. IV. f. 6, Mich. his lord. CH. II. § 3.] The Unfree. 399 protection afiforded by criminal law seems to go no further than the preservation of life and limb. The lord may beat or im- prison his serf, though of such doings we do not hear very much ^ As against his lord the serf can have no proprietary rights. Eighties If he holds in villeinage of his lord he of course is not protected serf, in his holding by the king's courts; but then this want of protection we need not regard as a consequence of his serfdom, for were he a free man he still would be unprotected, and then just as the free man holding in villeinage is protected by manorial custom and manorial courts, so the serf is similarly protected ^. His rightlessness appears more clearly as regards his chattels and any land that he may have acquired from one who is not his master. As regards any chattels that he may hold, the lord may at any time take these to himself. We hear indeed hints that his 'wainage,' his instruments of hus- bandry, are protected even against his lord ', that his lord can be guilty- against him of the crime of robbery*; but these hints are either belated or premature ; the lord has a right to seize all his chattels. But it is a right to seize them and so become owner of them : until seizure the serf is their owner and others can deal with him as such ^ As a matter of fact we hear little of arbitrary seizures, much of seizures which are not arbitrary but are the enforcement of manorial customs. The villeins are constantly amerced and distrained ; the lord in his pi. 11 ; Fitz. Abr. Corone, pi. 17 ; Lit. sec. 189, 190, 194, and Coke's comment. Littleton's doctrine is that a villein's heir has an appeal for the death of his ancestor, that a nieve has an appeal for rape, but that a villein has no appeal for mayhem, though for this crime the lord may be indicted. When a civil action was brought for beating, v?ounding, imprisonment, etc. there seems to have been some doubt as to how much of the charge the defendant should formally deny before pleading that the plaintiff was his villein ; see T. B. 33-5 Edw. I. p. 296. 1 Select Pleas of the Crown, p. 3 ; a villein kept in chains because he wished to run away. For the imprisonment of a body of rebellious tenants in the 14th century see Literae Cantuarienses, vol. ii. p. xxxvii. 2 A MS. of Bracton in the Phillips Library, No. 3510, has a marginal note written early in the fourteenth century which states the hereditary rights of the villeins in forcible terms. 'Item usque ad tertium gradum inclusive ill! de parentela et sanguine villauorum, sive mares fuerint sive feminae, succedeut iure hereditario in terras et tenementa villanorum. Et si per iniqunm dominum seu baUivum eiciantnr, iniuriatur eis in hoc, quia legem suam habent ut liberi homines suam.' 3 Braeton, f. 6, § 3 ; Vinogradoff, p. 74. * Bracton, f. 155 b, § 3. " See especially Bracton, f. 193 b, line 6. 400 The Sorts and Conditions of Men. [bk. ii. court habitually treats them as owners of chattels, he even permits them to make wills, and when they die he contents himself with taking a heriot \ so that here again when we look at the facts the serf's condition seems better described as unprotectedness than as rightlessness, though doubtless a lord may from time to time seize goods without being able to justify the seizure by reference to custom. Then, again, if the serf acquires land from some third process to hold by free tenure, he whose serf he is may seize it and hold it, but until such seizure the serf is tenant and others may and must treat him as such. Serfdom But then we find that all this rightlessness or unprotected- S/actoT*^ ness exists only where serfdom exists not only de iure but de facto. The learning of seisin or possession and the rigid prohi- bition of self-help have come to the aid of the serfs. Serfdom and liberty are treated as things of which there may be posses- sion, legally protected possession ==- A fugitive serf may some- what easily acquire a 'seisin' of liberty. When he is seised of libertj' the lord's power of self-help is gone ; he can no longer capture the fugitive without a writ ; he can no longer take any lands or chattels that the fugitive may have acquired since his flight '. He must have recourse to a writ, and the fugitive will have an opportunity of asserting that by rights he is a free man, and of asserting this in the king's court before justices who openly profess a leaning in favour of liberty*. We need not suppose that this curious extension of the idea of possession is due to this leaning ; it is part and parcel of one of the great ' But oustoma vary very much in this respect. The Abbey of Bee claims the chattels of all villeins who die intestate; E. H. ii. 758 and an unprinted custumal belonging to King's Coll. Camb. The Abbot of Eamsey makes a similar claim at St Ives ; Cart. Bams. i. 290. At Warboys and Oaldicote if the villein has no heir of his body the abbot takes a third of the goods. At Hemingford the villein can make a wUl ' even in the absence of the reeve or Serjeant.' Often the best of the villein's chattels were regarded as annexed to the tenement and could not be bequeathed ; see Literae Cantuarienses, ii. 411-2. ^ See in particular Bracton, f. 190b, line 8; '...in possessione servitutis...in possessione libertatis.' Bracton quaintly misappropriates the term statu liber for the serf who is de facto free, while the free man who ia de facto a serf is statu servus. ' Bracton, f. 191. " Bracton, f. 191 b, last lines : ' in statu dnbio semper erit pro libertate iudicandum ' ; f. 193, ' in hoc dubio erit pro libertate iudicandum ita quod in benigniorem partem cadat interpretatio.' CH. II. § 3. J The Unfree. 401 constructive exploits of medieval law: — ^relationships which exist de facto are to be protected until it be proved that they do not exist de iure. Still the doctrine, though it had a double edge, told against the lords. Apparently in Bracton's day a serf who fled had to be captured within four days ; otherwise he could not be captured, unless within year and day he returned to ' his villein nest ' * : a parallel rule gave the ejected landholder but four days for self-help". Of course however every absence from the lord's land was not a flight; the serf might be living elsewhere and making some periodic payment, chevagium, head-money, in recognition of his' lord's rights : if so, he was not in seisin of his liberty. What the Institutes say about domesticated animals can be regarded as to the points Yet another qualification of rightlessness is suggested. Covenant More than once Bracton comes to the question whether the lord and lord may not be bound by an agreement, or covenant, made with his serf. He is inclined to say Yes. His reasoning is this: — the lord can manumit his serf, make him free for all purposes ; but the greater includes the less ; therefore the serf may be made a free man for a single purpose, namely that of exacting some covenanted benefit and yet for the rest may remain a serf ^ Such reasoning is natural if once we regard serfdom as a mere relation between two persons. It does not however seem to have prevailed for any long time, for our law came to a principle which was both more easily defensible and more hostile to serfdom, namely that if the lord makes a covenant with his serf, this implies a manumission ; he becomes free because his lord has treated him as free^ Bracton's doctrine very possibly had facts behind it and was no empty speculation, for we do find lords making solemn and formal agreements with their serfs"; but it ran counter to a main 1 Bracton, f. 6 b, 7 ; X. B. 21-2 Edw. I. p. 449 ; 33-5 Edw. I. p. 205. * Bracton, f. 163. These strict possessory rules were being relaxed before the end of the century. Year and day takes the place of the four days ; Britton, i. 199, 201. 3 Bracton, f, 6b : 'ad similitudinem cervorum domesticorum,' Cf. Britton, 1. 201 ; Y. B. 32-3 Edw. I. p. 56. * Bracton, f. 24 b, 208 b ; Vinogradoff, pp. 70-4. = Littleton, sec. 205-7. " See Vinogradoff, p. 73. Add to his illustrations. Cart. Glouc. ii. 87: grant of land to G. our ' native ' for life and for his wife during her viduity, at a rent and in consideration of a gross sum ; he is not to marry son or daughter P. M. 26 402 The Sorts and Conditions of Men. [bk. ii. current of English land law. The agreements that Bracton had in view were in the main agreements relating to the tenure of land, and as we have already seenS our law was strongly disinclined to recognise any contract concerning the occupation of land which was merely a contract and not a bestowal of 'real' rights ; it urged the dilemma — no right to occupy land or some one of the known forms of legal tenure. (2) The The serf's position in relation to all men other than his lord relation to is simple : — he is to be treated as a free man''. When the lord persons. ^^ "^^^ concerned, criminal law makes no difference between bond and free, and apparently the free man may have to do battle with the bond. A blow given to a serf is a wrong to the serf It may also give his lord a' cause of action against the striker ; but here again the law makes no difference between bond and free. If my serf be assaulted so that I lose his services or so that I suffer contumely, I have an action for damages ; but it would be no otherwise had .the assaulted person been my free servant'. And so again as regards the master's liability for wrongful acts done by his dependants, the same principles as regards authorization and ratification seem to be applied whether the dependants be free servants or serfs" : It is rather for the acts of members, free or bond, of his house- hold (manupastus, mainpast) that a man can be deemed liable than for the acts of his serfs °- Then as regards men in general the serf may have lands and goods, property and possession, and all appropriate reme- dies. Of course if he be ejected from a villein tenement, he has no action ; the action belongs to the lord of whom he holds the tenement, who may or may not be his personal lord ; were he a free man holding in villeinage he would be no better off". But the serf can own and possess chattels and hold a free tenement against all but his lord. This general proposition may require some qualifications or explanations in particular The serf's property. without our leave. Select Pleas in Manorial Courts, i. 172 : elaborate recorded agreement between the abbot of Battle and his villeins ; Note Book, pi. 784, 1814. ■ See above, p. 389. ' Hengham Parva, u. 8. s Bracton, f. 155 § 2, 155 b § 3. ■< Bracton, f. 204, 204 b. s A man's liability for the doings of his mainpast will deserve fuller dis- cussion in another context. " In Braoton's day the man who purchases and obtains possession of villein land from a villein is protected against the lord's self-help ; Note Book, pi. 1203. CH. II. § 3. ] The Unfree. 403 instances. We read in the Dialogue on the Exchequer that if the lord owes scutage to the crown his serf's chattels can be seized, but ought not to be seized until his own chattels have been exhausted ' ; we read in Bracton that when a lord is to be distrained his villein's chattels should be the very first object of attack ^ ; but in these cases we may say that the serf having no proprietary rights against his lord is treated as having none against those who by virtue of legal process are enabled to seize what the lord himself could seize: — the general principle is hardly impaired by such qualifications, and of course it is a Tnost important principle. Still it is not a natural principle. This attempt to treat a Eeiatire man now as a chattel and now as a free and lawful person, or rather to treat him as being both at one and the same moment, must give rise to difficult problems such as no law of true slavery can ever have to meet. Suppose for example that a villein makes an agreement with one who is not his lord ; it seems certain that the villein can enforce it ; but can the other contractor enforce it ? To this question we have a definite answer from Britton ^ : — a contract can not be enforced against a villein ; if he be sued and plead ' I was the villein of X when this agreement was made and all that I have belongs to him,' then the plaintiff, unless he will contradict this plea, must fail and his action will be dismissed ; nor can he sue X, for (unless there be some agency in the case) the lord is not bound by his serf's contract. In later times this rule must have been altered; the plea 'I am the villein of X and hold this land of him in villeinage ' was constantly urged in actions for land, but we do not find the plea ' I am the villein of X ' set up in purely ' personal ' actions, as assuredly it would have been had it been a good plea*. But even if we admit that a villein may be sued upon a contract, the creditor's remedy is a very precarious one, for the lord can seize all the lands and 1 Dialogus de Soaocario, ii. u. 14. ^ Bracton, f. 217, line 36. We seem to see here a change unfavourable to the villein. 8 Britton, ii. 159, 168-9. ** See Broke, Abr. Villenage, pi. 33 : in an assize of mort d'ancestor one of the defendants pleaded that he was the villein of X and the action was dis- missed. Broke notes that he did not add that he held in villeinage and therefore treats the case as curious. Still this was an action for land. 26—2 404 The Sorts and Conditions of Men. [bk. ii. chattels of his serf, and an action against his serf is just what will arouse his usually dormant legal right. So the law in trying to work out its curious principle of ' relative servitude ' is driven to treat the serf as a highly privileged person, as one who can sue but cannot be sued upon a contract; and even when it allows that he can be sued, it can give the creditor but a poor chance of getting paid and will hardly prevent collusion between villeins and friendly lords. Again, we see the ecclesi- astical courts condemning the villein to pay money for his sins, fornication and the like, and then we see the villein getting into trouble with his lord for having thus expended money which in some sort was his lord's ^. The law with its idea of relative servitude seems to be fighting against the very nature of things and the very nature of persons. (3) The Lastly we should notice the serf's position in public law. tion to'the 0° general grounds it is highly probable that a serf could not state. gj^ g^g ^jjg judge of a free man, though it may be much doubted whether this rule was strictly observed in the manorial courts'. He could not sit as a judge in the communal courts ; though he often had to go to them in the humbler capacity of a 'presenter.' So too he could not be a juror in civil causes; this he probably regarded as a blessed exemption from a duty which fell heavily on free men. But in criminal matters and in fiscal matters he had to make presentments. At least in the earlier part of the century the verdict or testimony which sends free men to the gallows is commonly that of twelve free men endorsed by that of the representatives of four townships, and such representatives were very often, perhaps normally, born villeins. Such representatives served on coroners' inquests and the king took their testimony when he wished to know the extent of his royal rights'. In the 'halimoots' or manorial courts the serfs are busy as presenters, jurors, affeerers of amercements if not as judges ; they fill the manorial offices ; the reeve of the township is commonly a serf. What is more, 1 Select Pleas in Manorial Courts, i. 97, 98. " On a very early roll of a Norfolk manor, for a sight of ■which we have to thank Dr Jessopp, a villein is amerced for having essoined a free man 'et testatnr per curiam quod uon potest assoniare liberum hominem. ' * Thus the Hundred Rolls seem to be founded on the presentments made as well by representatives of townships, who would often be unfree, as by free and lawful jurors of the hundreds ; see the rolls for Essex, E. H. i. 136 f. CH. II. § 3.] The Unfree. 405 the state in its exactions pays little heed to the line between free and bond ; it expects all men, not merely all free men, to have arms'; so soon as it begins to levy taxes on movables, the serfs, if they have chattels enough, must pay for them^ It is but a small set-off for all this onerous freedom that a serf can not be produced as champion or as compurgator ; and even this rule is made to operate in favour of liberty ; if a lord produces a serf as champion or compurgator this is an implied manu- mission'. On the whole the serfs have to bear many of the burdens of liberty; the state has a direct claim upon their bodies, their goods, their time and their testimony, and if for a moment this seems to make their lot the less tolerable, it at least prevents our thinking of them as mere domestic animals, the chattels of their lords. Having seen what serfdom means, we may ask how men How men become serfs. The answer is that almost always the serf is a serfs, born serf; nativus and villanus were commonly used as inter- changeable terms ^ But as to the course by which serfdom is ^.^"'^« transmitted from parent to child we find more doubts than we might have expected. If both parents be serfs, of course the child is a serf; but if one parent be free and the other a serf, then difficulties seem to arise. The writer of the Leges Henrici holds that the child follows the father ; but he quotes the proverb ' Vitulus matris est cuiuscunque taurus alluserit ' and seems to admit that in practice the child is treated as a serf if either of the parents be unfree^. Glanvill is clear that the child of an unfree woman is a serf and seems to think that the child of an unfree man is no better off°.' Thus we should get the rule approved by the church that whenever free and servile blood are mixed the servile prevails'. Bracton however has a more 1 The original Assize of Arms (1181) contemplates only the arming of free men ; but the writ of 1252 requires that the villani, if rich enough, shall be armed. It is plain also that already in 1225 villani were iurati ad arma. This appears from the writ of that year for the collection of a fifteenth. See these documents in Stubbs, Sel. Charters. 2 Even the ordinance for the Saladin tithe draws no line between free and unfree. The fifteenth of 1225 was levied from villani, so apparently were the fortieth of 1232 and the thirtieth of 1237. ' Bracton, f. 194, last lines. •" Thus Britton, i. 197, says that the ' native ' who is a native not by birth but by his own confession is more properly called a villein. ■^ Leg. Henr. c. 77. ' Glanvill, lib. v. c. 6. ' See u. 15, 0. 32, qu. 4. Such a rule, expressed in the German proverb 406 The Sorts and Conditions of Men. [bk. ii. elaborate scheme. A bastard follows the mother ; the child of a bondwoman if born out of wedlock is a serf; if bom in wedlock and of a free father, then another distinction must be taken ; if a free man takes a bondwoman to wife and they dwell in her villein tenement, then their offspring will be born serfs, but if she follows him to ' a free couch ' then their children will be born free. So also when a bondman marries a free woman, the character of the tenement in which they dwell determines the character of their offspring^ The influence thus ascribed to the tenement is very curious; it shows that to keep villein status and villein tenure apart was in practice a very difficult matter even for a lawyer ever ready to insist that in theory they had nothing to do with each other. In later days the courts seem to have adopted the simple rule that the condition of the father is the decisive fact and to have pressed this rule to the absurd, if humane, conclusion that a bastard is always born free since he has no fathers- Mixed 'Mixed marriages' indeed gave a great deal of trouble marriages, throughout the middle ages by raising questions as to the rights and remedies of the husband and wife^ Ultimately ' the better opinion of our books ' was that the marriage of a female serf with a free man, other than her lord, did not absolutely enfranchise her, but merely made her free during the marriage'- In 1302 however we find two justices de- nouncing this doctrine as false, ' and worse than false, for it is heresy ;' apparently they think that such a marriage has all the effect of a manumission ; but their opinion did not go undis- puted^. Such a marriage at any rate would not drag down the free man into personal servitude, though according to Bracton the issue of it would be serfs if they were born in the villein ' das Kind folgt der argeren Hand, ' is by no means an unnatural one ; see Heusler, Institutionen, i. 188. In Prance they say ' Le manvais emporte le bon ' : VioUet, Histoire du droit civil, p. 319. 1 Bracton, f. 5, 194 b ; Note Book, pi. 1041, 1839. s See Vinogradoff, pp. 59-63, also the note on Leg. Hen. c. 77 in Thorpe's Ancient Laws and Institutes. The freedom of the bastard appears at least as early as Y. B. 19 Edw. II. f. 651-2. It appears also in Beaumanoir (c. 45, sec. 16) where it is the more curious because the general rule is ' Servitude vient de par les mires.' ^ See the Abridgernents, tit. Villenage. * Co. Lit. 123 a, 136 b, 137 b. " Y. B. 80-1 Edw. 1. 164-8. Comp. Britton, i. 199 ; Y. B. 18 Edw. II. 604. OH. 11. § 3. J The Unfree. 407 tenement. In the converse case in which a bondman marries a free woman, he of course is not enfranchised, though Bractou's doctrine would make their children free if born in her free tenement. On the contrary it might be thought that, at all events if she went to live along with her villein husband in his villein tenement and to bear him villein children, she herself would be accounted a villein. But this was not the legal rule. How far during the marriage she could make good any rights against her husband's lord (and it will be remembered that as against all others her husband was a free man) was very doubtful ; she could not sue without her husband, and if he joined in the action, the lord would say ' You are my villein '.' But on her husband's death she would be free once more, or rather her freedom would once more become apparent and operative''. Faint traces may be found of an opinion that birth in a influence ... . -ii 1 1 1 •! 1 of place of certam district or a certain tenement will make the child birth, unfree, or as the case may be free, no matter the condition of its parents ; but, except in the well-known privilege of Kentish soil, it seems to have found no legal sanction °. A person born free rarely becomes a serf When Bracton Viikius by speaks of prisoners of war being held as slaves and of a freed- man being reduced to slavery on account of his ingratitude, this is but romanesque learning*. We do not in this age hear of servitude as a punishment, though the Welsh marchers claim the right of selling criminals as slaves^, and King John can ' Bracton, f. 202, 202 b ; Britten, i. 281. Bractou's own opinion seems this : — Free woman with free tenement marries a bondman ; his lord ejects them from her free tenement; they can sue him. (See Bracton's Note Book, pi. 1837 ; it is not stated in this case that the disseisor was the villein's lord.) But apparently Bracton admits that this is not the prevailing opinion, at all events if the lord is in seisin of tlie husband. Observe the words ' secundum quosdam quod ego non approbo.' But at any rate daring the marriage the wife can have no action against her husband's lord save one based on the disturbance of her possession. 2 Bracton, f. 202, 428 b, 430 b; Britton, f. 198-9; Note Book, pi. 702, 1189. As to the whole of this subject, see Vinogradoff, pp. 61-3. 3 Assize EoU, Lincoln, No. 481 (57 Hen. III.), m. 3 : 'in villa de Bellesby sunt duo feoda, scilicet, feodum de Fauemer et feodum Peverel et . . . omnes illi qui nati sunt in feodo de Fauemer Uberi sunt, omnes vero illi qui nati sunt in feodo Peverel villani sunt.' ■• Bracton, f. 5. But as to the ingratitude of one who has become free by knighthood, or by orders, see Britton, i. 208 ; Fleta, p. 111. 6 P. Q. W. 818-9. 408 The Sorts and Conditions of Men. [bk. ii. threaten all men with slavery if they do not take arms to resist an invasion'. Nor do we any longer hear of free men selling themselves into slavery. But it is a principle of law that if a person has once confessed himself the serf of another in a court of record, he can never thereafter be heard to contradict this assertion, and so 'confession' takes its place beside 'birth' as one of the origins of servility. There are abundant cases in our records which suggest that this talk about confession is not idle^; a defendant sometimes seeks to evade a plaintiff's de- mand by confessing that he is the villein of a third person, and thus even in the later middle ages men may sometimes have purchased peace and protection at the cost of liberty'. Serfdom Whether prolonged de facto serfdom will generate serfdom scnption. ^''' ^'^^"^ ^*s i'^ Edward I.'s day a moot point. Some justices laid down as a maxim that no prescription can ever make servile, blood that once was free. Others flatly denied this rule, and apparently held that if from father to son a succession of free men went on doing villein services, the time would come when an unfree child would be bom to a free father. One opinion would have condemned to servitude the fifth generation in a series of persons performing base sei-vices, while a Scottish law-book mentions the fourth generation, and a common form 1 Eot. Pat. i. 55. If they make default they and their heirs shall be servi for ever, paying every year four pence per head. A ohevage of four pence a head seems to have been common in France ; hence the serf is homo quatuor num- mcyrum. ■' Note Book, pi. 466, 691, 1411, 1885^ 1887, 1894 ; Y. B. 30-1 Edw. I. p. 454 ; Y. B. 32-3 Edw. I. p. 4 ; Y. B. 19 Edw. II. f. 651. '^ But how could a defendant gain anything by saying untruly that he was personally a viUein ? In an action for land was it not enough to say ' I hold in villeinage, or I hold at will, and therefore I am not the right person to be sued'; while is it not only in actions for land that we find defendants relying on villeinage of any kind ? The answer is given by a case of 1292 ; Y. B. 20-1 Edw. I. p. 41. If the defendant merely pleads tenure in villeinage, the plaintiff may contradict him and the falsehood of the plea may be established ; but if he adds that he is a villein, then the plaintiff can make no reply and fails in his suit. Perhaps it was considered improbable that any one would condemn himself and his posterity to perpetual servitude unless he had good cause for so doing. At any rate there was no reply to this allegation of villein status until in 1363 a Statute, 37 Edw. III. o. 17, permitted the plaintiff to contradict it. In 15 Edw. III. Fitz. Abr. Brief, 822, the absurdity of the rule is shown :— ' It is hard ; for a man may confess himself villein to his father or his cousin, and then next day get a release from him.' ' Yes it is hard,' is the reply, 'but it is law.' CH. II. § 3.] The Unfree. 409 of pleading made a lord assert that he had been seised of the grandfather and great-great-grandfather of the man whose liberty was in dispute. Opinion might fluctuate about this question, because procedural rules prevented it from being often brought to a decision. The general rule as to the means by which free or servile status could be conclusively proved was that it must be proved per parentes. If the burden of proof lay on the person whose status was in question, he had to produce free kinsmen ; if it lay on the would-be lord, he had to produce kinsmen of the would-be free man who would confess themselves serfs. A mere verdict of the country might settle the question provisionally and, as we may say, for possessory purposes, but could not settle it conclusively except as against one who had voluntarily submitted to this test. The burden of the proof is thrown on one side or on the other by seisin ; the man who is in de facto enjoyment of liberty remains free until his servility is proved; the man who is under the power of a lord must remain so until he has shown his right to liberty. On the whole the procedural rules seem favourable to freedom. In Bracton's day a four days' flight' might throw the burden of proof upon the lord, and he would have to make out his title, not by the testimony of free and lawful neighbours, who would naturally infer serfdom de iure from serfdom de facto, but by the testimony of the fugitive's own kinsfolk as to the fugitive's pedigree and they must confess themselves serfs before their testimony can be of any avail*. On the other hand if a man has been doing villein services, he may as a matter of fact easily fall into serfage, unless he is willing to run from hearth and home and risk all upon a successful flight and an action at law. . If for generation after generation his stock has held a villein tenement and done villein services he will come to be reckoned a villein, that is, a serf; even his kinsfolk will not dare to swear that he is free. There is no form of service so 1 See above, p. 401. ^ On the face of it this looks like aa ancient procedure, which has been preserved in this case infavorem Ubertatis. The lord ends his count by offering •suit,' to wit. A, B, G, kinsmen of the defendant. In most other cases the production of suit has in the king's court become a mere formality, but here it is still all important. A jury may be brought in to decide whether the ' suitors ' are really of kin to the defendant. Cases illustrating this procedure are, Note Book, pi. 1005, 1041, 1167, 1812 ; T. B. 32-3 Bdw. I. p. 514 ; Northumbrian Assize Bolls (Surtees Soc.) pp. 46, 159, 196. mission. 410 The Sorts and Conditions of Men. [bk. ii. distinctively servile that it must needs be ascribed to servile status and not to villein tenure; even the merchet, which is regarded as the best test, may sometimes be paid ratione tenementi and not ratione personae^ ; but still a prolonged performance of villein services must put a family's free status in jeopardy. That this is not so as a matter of law seems the opinion of the highest authorities, but the fact that a contrary opinion was current both in England and in Scotland may well make us think that in common life there had been a close connexion between villein tenure and villein status". How serf- And now as to manumission : — A lord can very easily ceases. emancipate his serf He can do so expressly by a charter of Manu- manumission ; he does so impliedly by a grant of land to be held freely by the serf and his heirs, for a serf can have no heir but his lord' ; he does so impliedly by certain acts which treat the serf as free, by producing him in the king's court as his champion or his compurgator* ; it is becoming dangerous for a lord to make any written agreement with his serf^ There has been a difficulty as to a direct purchase of liberty. If the serf paid money to the lord for the grant of freedom, the lord might, it would seem, revoke the grant on the ground that the serf's money was his own money. This technical difficulty, for perhaps it was no more, was evaded by the intervention of a ' See above, p. 355, and Britton, i. 196. In Y. B. 8 Edw. III. f. 66 (Mich, pi. 31) it is said that the bishop of Ely held land by the service of being tallaged along with the villeins. 2 The best illustration of this point is a case of 20 Edw. I. reported in the notes to Hale's Pleas of the Crown, ii. 298. Two justices of assize laid down the rule ' quod nulla praeseriptio temporis potest liberum sanguinem in servi- tutem reducere.' The case was then brought before the auditors of complaints, who declared that this maxim ' omnino falsnm est.' The case was then taken into the King's Bench, but with what result does not appear. Britton, i. 196, 206, denies utterly that long performance of base services; e.g. payment of merchet, can make a free stock unfree. So does Hengham in Y. B. 33-5 Edw. I. p. 15 : ' praeseriptio temporis non redigit sanguinem libernm in servi- tutem.' On the other hand a gloss in the LonguevUle MS. at Cambridge, printed by Vinogradofi, p. 63, says that in the fifth generation villein services will make free blood servile. The Scottish Quoniam Attachiamenta, c. 39, (Acts of Parliament of Scotland, i. 655) makes the fourth generation servile. Then in Fitz. Abr. Villenage, pi. 24, we have an extract from an unprinted Year Book of Edward III., which seems to say that a stock may become servile by holding in villeinage from time immemorial. s Braoton, f. 24 b, 194 b. Britton, i. 198. ■* Braoton, f. 194. » See above, p. 401 . CH. II. § 3. J The Unfree. 411 third person who made the purchase nominally with his own but really with the serf's money and the serf having been sold and delivered (the ownership did not pass until delivery) was then set free by his new owner'. In Bracton's day every act of emancipation by the lord The seems to have conferred full and perfect freedom ; the freed man was in all respects the equal of the free born. This could hardly have been otherwise since, as we have seen, serfdom was regarded for the more part as a mere relation between two persons. Glanvill seems to have held a different opinion. He speaks as though the emancipation would make the serf free as regards his former lord but leave him a serf as regards all other men^ The chief, if not the only, point that Glanvill had before his mind when he wrote this, seems to have been this, that the freed villein could not be produced as champion or as compurgator. It is possible also that he had in view acts of enfranchisement which were merely private and would not have denied that there were solemner methods by which absolute freedom could be conferred. In the Leges Henrici the man who wishes to enfranchise his serf must do so in public, 'in a church or a market or a county court or a hundred court, openly and before witnesses ' ; lance and sword are bestowed on the new free man and a ceremony is enacted which shows him that all ways lie open to his feet'. Glanvill may have required some such public act if perfect liberty was to be conferred ; but Bracton, who habitually regards serfdom as a mere relationship, sees no difficulty; the lord by destroying the relation destroys serfdom. Here we seem to see a modern 1 Glanvill, v. 5. This passage is a very difficult one, but seems to be ex- plained by Bracton, f . 194 b. We may doubt whether Glanvill means to deny that a lord can gratuitously liberate his serf. If however he liberates him in con- sideration of a sum of money then a difficulty arises; this is met by the intermediation of a third person who purchases the serf nominally with his own money, though really with the serf's money. Bracton says 'ehgat fidem alicuius qui eum emat quad propriis denariis suis.' Still villeins are said to buy their own liberty ; e.g. Note Book, pi. 31, 343. The books of conveyancing precedents of the thirteenth century, e.g. the Luffield and Carpenter MSS. at Cambridge (Ee. i. 1 ; Mm. i. 27), give forms of manumission by way of sale ; the former shows how the transaction can be accomplished either by two deeds or by a single deed. But see Yinogradoff, p. 86, who deals somewhat differently with the difficult passage in GlanvUl. 2 GlanvUl, v. 5. 2 Leg. Henr. c. 78 § 1: ' et liberas ei vias et portas consoribat apertas.' 412 The Sorts and Conditions of Men. [bk. it. notion of relative serfdom growing at the expense of an older notion of true slavery ; to turn a thing into a person is a feat that can not be performed without the aid of the state, but to make free as against yourself one who is already free as against all but yourself, this you can easily do, for it is hardly a matter of public law', other A serf will also become free (1) by dwelling for year and day enfran- On the king's demesne or in a privileged town — this is an assertion of a prerogative right which peoples the king's manors and boroughs^; (2) by being knighted — knighthood confers but a provisional freedom, for the knighted serf can be degraded when his servility is proved ' ; (3) by entering religion or receiving holy orders ; it is unlawful to ordain a serf — this is forbidden by canon as well as by temporal law^ — but when once ordained he is free though his serfdom revives if he resumes a secular life^ The lord's right of action for the recovery of a serf was subject to a prescriptive term; in 1236 the year 1210 was chosen as the limit, and this limit was not altered until 1275^; we have already seen that his right of self-help the lord lost somewhat easily, though less easily as time wont on'. Summary. Such briefly stated is the English law of villeinage or serfage in the thirteenth century. Its central idea, that of the relativity of serfage, is a very strange one ; it looks artificial, that is to say, it seems to betray the handiwork of lawyers who have forced ancient facts into a modern theory. Slavery is very intelligible ; so is slavery tempered by humane rules which will forbid an owner to maltreat his human chattel ; so again is a praedial serfage, and the ancient laws of our race compel us to ' Note Book, pi. 1749. Here again Vinogradoff, pp. 86-8, gives a somewliat different explanation. ' Glanvill, v. 5; Braoton, f. 190 b; Fleta, 111, 235; Britten, i. 200, 209; Stubbs, Hoveden, vol. ii. (Introduction), p. xl. 3 Bract, f. 190 b, 198 b ; Britten, 1. 200, 208 ; Fleta, 111. * See the whole of Dist. 54 and X. 1, 18. In 1270 Eobert de Montalt at his mother's request enfranchised by charter his ' beloved and faithful clerk ' Eoger de Malbertherpe, who perhaps was not in holy orders : Assize Bell, Lincoln, No. 494, m. 43 d. " Bract, f. 5, 190 b; Britten, i. 200, 208; Fleta, 111. According to Fleta the serf who has been ordained may be degraded by the bishop if he proves a disobedient clerk, and thereupon he relapses into serfdom. « Note Book, pi. 1217 ; Stat. Westm. I. (3 Edw. I.) c. 39. ' See above, p. 401. CH. II. § 3.] The Unfree. 413 admit that there may be a half-free class, men who are neither liheri homines nor yet serm ' ; but a merely relative serfdom is a juristic curiosity ". In defining it we have ever to be using the phrases 'in relation to/ 'as regards,' 'as against,' phrases which would not easily occur to the unlettered, and law which allows my serf to sue any free man but me, even to sue my lord, does not look like a natural expression of any of those deep- seated sentiments which demand that divers classes of men shall be kept asunder. Then this idea of relative servitude has to be further qualified before it will square with facts and customs and current notions of right and wrong. When a lord allows it to be recorded that on the death of his servile tenant he is entitled to the best beast, he goes very far towards admitting that he is not entitled to seize the chattels of his serf without good cause. We hesitate before we describe the serf as rightless even as against his lord, and if we infer want of right from want of remedy we feel that we may be doing violence to the thoughts of a generation which saw little difference between law and custom. On the whole looking at the law of Bracton's day we might guess that here as elsewhere the king's court has been carrying out a great work of simplifi- cation; we might even guess .that its ' serf- villein,' rightless against his lord, free against all but his lord, is as a matter of history a composite person, a serf and a villein rolled into one '. That this simplifying process greatly improved the legal Eetro- position of the serf can hardly be doubted. We need not Fusion of indeed suppose that the theow or servus of earlier times had Iiares.^ °^" been subjected to a rigorously consistent conception of slavery. 1 Aa to the liti and aldiones see Brunner, D. B. G. i. 101. ^ A comparison between our medieval serfdom and the slavery of the ancient world might seem to some beside the point on the ground that the ancients were heathen. But a no less startling contrast might be drawn between our medieval serfdom and the law which Englishmen and men of English race evolved for their negro slaves. It was quite untroubled by any idea of ' rela- tivity,' and reproduced, though it had hardly copied, the main features of Eoman law. See T. E. Cobb, An Inquiry into the Law of Negro Slavery, Philadelphia, 1858. 3 The contemporary law of France knew how to keep the vilain and the serf well apart. Sometimes the former word is used to describe the whole mass of peasants bond and free. ' Mais souvent aussi le mSme mot est employ^ avec une signification restreinte et s'applique au paysan libre, par opposition au serf, comme la tenure en viUenage est opposfie k la tenure en mainmorts ' : Luchaire, Manuel des institutions, p. 329. A contemporary French critic of Bracton's book would have accused him of mixing up two classes of men. 414 The Sorts and Conditions of Men. [bk. ii. Still in the main he had been rightless, a chattel ; and his rightlessness we may be sure had not been the merely relative rightlessness of the ' serf-villein ' of later days, free against all but his lord. Indeed we may say that in the course of the twelfth century slavery was abolished. That on the other hand the villani suffered in the process is very likely. Certainly they suffered in name. A few of them, notably those on the king's manors, may have fallen on the right side of the Roman dilemma 'aut liberi aut servi,' and as free men holding by unfree tenure may have become even more distinctively free than they were before; but most of them fell on the wrong side; they got a bad name and were brought within the range of maxims which described the English theow or the Roman slave. The Probably we ought not to impute to the lawyers of the process, period any conscious desire to raise the serf or to debase the villein. The great motive force which directs their doings in this as in other instances is a desire for the utmost generality and simplicity. They will have as few distinctions as possible. All rights in land can be expressed by the formula of dependent tenure; all conceivable tenures can be brought under some half-dozen heads ; so also the lines which have divided men into sorts and conditions may with advantage be obliterated, save one great line. All men are free or serfs ; all free men are equal; all serfs are equal: — no law of ranks can be simpler than that. In this instance they had Roman law to help them ; but even that was not simple enough for them ; the notion of coloni who are the serfs of a tenement rather than of a person, though it might seem to have so many points of contact with the facts of English villeinage, was rejected in the name of simplicity '. They will carry through all complexities a maxim of their own : — the serf is his lord's chattel but is free against all save his lord. They reck little of the interests of any classes, high or low ; but the interests of the state, of peace and order and royal justice are ever before them. The We have spoken at some length of the ' serf-villeins ' of the the serfs, thirteenth century, for they formed a very large class. For several reasons precise numerical calculations are impossible. In the first place, tenure is so much more important than status, at least so much more important as a matter of manorial economy, that the ' extents ' and surveys are not very careful to ' Braoton, f. 4 b. OH. 11. § 3. J The Unfree. 415 separate the personally free from the personally unfree. In the second place, it is highly probable that large numbers of men did not know on which side of the legal gulf they stood ; they and their ancestors had been doing services that were accounted villein, paying merchet and so forth ; but this was not con- clusive, and if they escaped from their lord it might be very difficult for him to prove them his 'natives' On the other hand while they remained in his power, they could have little hope of proving themselves free, and if they fled they left their all behind them. In the third place, a great part of our inform- ation comes from the estates of the great abbeys, and while admitting to the full that the monks had no wish to ill-treat their peasantry, we can not but believe that of all lords they were the most active and most far-sighted. Lastly, we have as yet in print but little information about certain counties which we have reason to suppose were the least tainted with servi- tude, about Kent (already in Edward I.'s time it was said that no one could be born a villein in Kent'), about Norfolk and Suffolk, about the Northumbrian shires. Still, when all is said, there remain the Hundred Rolls for the counties of Bedford, Buckingham, Cambridge, Huntingdon and Oxford, and no one can read them without coming to the conclusion that the greater half of the rural population is unfree. The jurors of various hundreds may tell us this in different ways ; but very commonly by some name such as nativi or servi, by some phrase about '. ransom of flesh and blood ' or the like, they show their belief that taken in the lump those peasants who are not freeholders and are not royal sokemen, are not free men. Occasionally a man who was bom a villein might find a grand career open to him. It was said that John's famous captain Gerard de Athie, whose name is handed down to infamy by Magna Carta, was of servile birth''; in 1313 the bishop of Durham manumitted a scholar of Merton who was already a 'master''; in 1308 Simon of Paris, mercer and alderman, who had been sheriff of London, had been arrested as a fugitive vil- lein, after being required to serve as reeve of his native manor^ 1 - Kentish Custumal (Statutes, i. 222) ; Y. B. 30-1 Edw. I. p. 168. But see Note Book, pi. 1419. ' Maitland, Pleas of the Crown for Gloucestershire, p. xiii. 2 Depositions and Ecclesiastical Proceedings from the Court of Durham (Surtees Soc. ) p. 6. ^ T, B. 1 Edw. II. f. 4 ; Liber de Antiquis Legibus, p. 249. 416 The Sorts and Conditions of Men. [bk. ii. § 4. The Religious. Civil death. Another large part of medieval society is made up of men and women who have ' entered religion and become professed,' of monks, nuns, friars and 'regular' canons who have taken vows of poverty and of obedience and quitted this world. Now a transition from the villein to the monk seems harsh. Bracton however makes it: — the villein being under the power of his lord may like the monk be considered as ' civilly dead \' From the lawyer's point of view the analogy that is thus suggested will not seem altogether fanciful and profitless. It is not as a specially holy person but as a property-less and a specially obedient person that law knows the monk. He has no will of his own because he is subject to the will of another, and though as a matter of religion that will may be thought of as the divine will expressed in the rule of St Benet or St Bernard, still within the sphere of temporal law it is represented by the will of the abbot. It could not be suffered that by a mere declaration of his intention to live a holy life untroubled by mundane affairs a man should shuffle off not only the rights but the duties that the law has cast upon him ; but a vow of obedience is a different matter; it is not so very unlike a submission to slavery. Growth of The fiction of ' civil death ' seems called in to explain and civil death, define rules of law which have been gradually growing up"". By the dooms of ./Ethelred and of Cnut the cloister-monk is forbidden to pay or to receive the feud money, that is to say, the money payable by the kindred of a man-slayer to the kindred of the slain, ' for he leaves behind his kin-law when he submits to rule-law ' ; he ceases to be a member of a natural family when he puts himself under the monastic rule and enters a spiritual family \ Yet earlier Alfred had decreed that if I entrust goods to ' another man's monk ' without the leave of that monk's ' lord ' and the goods are lost, I must go without ' Bracton, f. 421 b : ' Est etiam mors civilis in servo in servitute sub potes- tate domini constituto.' ^ For the parallel and closely similar French law, see Viollet, Histoire du . droit civil, p. 283. •' jEthelr. viii. 25; Cnut, i. 5, § 2, 'He gteB of hia mteg-lage, >onne he gebyhiS tt regol-lage.' CH. II. § 4. J The Religious. 417 remedy \ At a later time we find the same principle applied if the monk to whom I have entrusted the goods chooses to deny fehe receipt of them, and the monk is here classed along with the slave, the wife, the infant child. These passages pre- suppose that we can not sue the monk without his prelate, his ' lord,' and they declare that the monk can not make his prelate liable for the safety, or the return, or the price of goods, unless he has been expressly authorized to do so^. But it is very doubtful whether in the days before the Conquest or even for some years afterwards the principle that is hinted 0,t by the term 'civil death' was rigorously enforced. The older and laxer forms of monasticism could not be overcome by one blow. In .iEthelred's day the cloisterless monk who recked not of the rule but was trying to make the best of both worlds was still well known'. We find too in Domesday Book that a monk will sometimes hold land of his house, or of his abbot, and the state seems to regard him as being the responsible tenant of that land *. But stricter notions began to prevail and to find expression Meaning of in the term ' civil death.' In one large department of law the fiction is elegantly maintained. A monk or nun can not - acquire or have any proprietary rights. When a man becomes ' professed in religion ' his heir at once inherits from him any land that he has ', and his will, if he has made one, takes effect at once just as though he were naturally dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend to him, he is over- looked as though he were no longer in the land of the living ; the inheritance, as it were, misses him and passes to some more distant relative. The rule is not that what descends to him 1 Alf. 20. 2 Onut, I. 5, § 2, Cod. Colbert; Leg. Henr. 23, § 3, 45, § 2, 3. On the other hand the abbot has to answer for the acts of the obedientiaries of his house, i.e. of the sacrist, cellarer, almoner, vestiary and the like. They have a general power of binding him. » ^thelr. V. 5 ; vi. 3. * e.g. D. B. i. 90, 'Praeter hanc terram habet Abbas [Glastingberiensis] xx. carucatas quae uumquam geldaveruut Oe terra quae non geldat tenet Alnodus monachus i. hidam liberaliter de Abbate concessu Begis. ' So late as 1175 it is necessary to prohibit monks from taking land as firmarii; Johnson, Canons, ii. 62. " This appears already in Glanvill, xiii. 5, 6. P. M. 27 418 The Sorts and Conditions of Men. [bk. ii. belongs to the house of which he is an inmate ; nothing descends to him for he is already dead^ We have to remember that in the eye of ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights or the separate enjoyment of any wealth, committed about as bad an offence as he could possibly commit ^ Difficulties A fiction however which would treat a living man as a dead ansing , , ... from civil man must find that limits are set to it by this material world. A monk does wrong or suffers wrong ; we can not treat the case as though wrong had been done to a corpse or by a ghost. A monk of Eamsey assaults and beats a monk of Thomey; the law is not content that the injury should go unredressed. As regards those grave crimes which are known as felonies, the monk is dealt with as though he were an ordained clerk; he enjoys that ' benefit of clergy ' of which we must speak here- after. For smaller offences, the ' misdemeanours ' of later law, monks, like secular clerks, could be tried by the temporal courts and imprisoned'. As to torts or civil wrongs, the rule was that the monk could neither sue nor be sued without his ' sovereign.' The man assaulted by a monk would bring his action against that monk and that monk's abbot, while if a monk were assaulted his abbot and he could bring the action ^ The abbot seems to have been entitled to receive any compensation that became due for damage done to the monk, and to have been compelled to make amends for damage that the monk did. Our law did not say that a monk- could not sue or be sued, it said that he could not sue or be sued without his sovereign. Nor did it say that a wrong done to a monk was the same thing as a wrong done to his abbot, or that a wrong done by a monk was the same thing as a wrong done by his abbot ; it is not all one whether a monk of Ramsey has beaten a monk of Thorney, or the abbot of Ramsey has beaten the abbot of ' Select Civil Pleas (Seld. Soc), i. pi. 208; Note Book, pi. 455, 1057, 1139 1586, 1594. ' " For proceedings against a proprietarius, see Lit. Cantuarienses, iii. 176-7. ' Edward I. kept ten of the Westminster monks in prison on the ground that they, if not cognizant of a robbery of the king's treasury, were guilty of negligence which made the robbery possible. Eishanger, 222, 225, 420 ; Flores Historiarum, 116 ; Pike, History of Crime, i. 198. * See the writs in Eeg. Brev. Orig. 107 b. CH. II. § 4.] The Religious. 419 Thorney. The maxim ' Actio personalis moritur cum persona ' seems to have been applied as though the two monks were truly ' personae.' The action died with the offending monk and with the offended. Often enough the analogy afforded by the law of husband and wife is brought into the debate. A blow given by John's wife to Peter's wife is not the same as a blow given by John to Peter; yet John may have to pay money because his wife is a striker and Peter may receive money because his wife has been stricken. If we may judge from the Year Books, a long time elapsed before accurate rules about this matter were evolved, and perhaps some questions were still open even when the day came for the suppression of the monasteries. But the main principle that guides our lawyers in this.region is, not that the monk is dead, but that though he can do wrong and suffer wrong, he has not and can not have any property. Problems which in themselves were difficult were made yet more difficult by the slow growth of the idea that the head of the monastery, though he is a natural person, is also in a certain sense an immortal, non-natural person, a ' corporation sole,' and is likewise the head of a ' corporation aggregate'.' A monk could make no contract, but he was fully capable The monk of acting as the agent of his sovereign, and even in litigation he would often appear as the abbot's attorney. A monk might be another man's executor, for the execution of testaments is a spiritual matter^ It would certainly be a great mistake to suppose that monks never took part in worldly affairs. The obedientiaries of a great abbey must often have been keen men of business largely engaged in buying and selling, and the manorial courts of the abbey were frequently held by the cellarer or some other person who was civilly dead. Whatever the ecclesiastical law may do, the temporal law does not attempt to keep the monks out of courts and fairs and markets ; it merely says that a monk has not and can not have any property of his own. > Interesting discussions will be found in Y. B. 49 Edw. III. f. 25 (Mich, pi. 5) ; 20 Hen. VI. f. 21 (Hil. pi. 19). ' Y. B. 3 Hen. VI. f. 23 (Hil. pi. 2). In his character of executor he might even have an action of debt against his prelate. Hence a riddle : — When can a man sue his own executors? When owing money to a monastery, he becomes professed in it and afterwards abbot of it. 27—2 420 The Sorts and Conditions of Men. [bk. ii. Abbatiai The manner in which the monks were treated by the ecclesiastical law we shall not discuss ; but the temporal law seems to have assumed that every monk was the absolute subject of some 'sovereign' — normally an abbot, but in some cases a prior or a bishop'. Whatever degree of ' constitutional government,' of government in accordance with 'the rule' or the statutes of the order, of government by an assembly, by a chapter, might prevail within the house, was no affair of the secular power. It treated the sovereign as an absolute monarch and would hardly be persuaded to step between him and his subjects. Against him they could urge no complaint. We may indeed suppose that he might have been indicted for slaying or maiming them ; but even in this case he would have enjoyed the benefit of clergy and been sent for trial to an ecclesiastical court. So long as he did not deprive them of life or limb he committed no crime of which the lay tribunals would take any account, and undoubtedly the penances inflicted on them were sometimes extremely rigorous^ According to the common law of the church the monks might appeal from their abbot to the bishop of the diocese, but some of the great houses were exempt from the bishop's control and then there was no help to be had save from Rome. Occasionally the monks would unite to resist their abbot and fierce and pro- tracted litigation before the Roman curia would be the result'. But the individual monk was very helpless ; if he escaped from his cloister the temporal power would come to the aid of the church and deliver up this 'apostate' to his ecclesiastical superiors*. Eetnrn to Late in the day we hear discussions as to the possibility of ' the dead coming to life. In the fifteenth century lawyers said 1 In our law French the term sovereign is technically used in this context ; see e.g. Britton, i. 159. ^ See the long statement as to the cruelties practised among the Dominican friars ; Plores Historiarum, iii. 161. ^ The great quarrel between the monks of Canterbury and the two arch- bishops Baldwin and Hubert, of which a long account is given by Stubbs in the Introduction to the Epistolae Cantuarienses, is a classical example. But here the question, if regarded from the point of view of English temporal law, came to this — Whether the archbishop was or was not the ' sovereign ' of the cathedral monastery. * See the writ De apostata capiendo, Beg. Brev. Orig. 71 b. A good story of an escape is told in Literae Cantuarienses, ii. p. xxxviii. civil life. CH. II. § 4.J The Religious. 421 that, though the ' sovereign ' might release the monk from his obedience, none but the pope could restore him to the world of civil rights'. Rules about such a point had not been very necessary, for dispensations from monastic vows had been un- common. Of course in a manner the monk came back to legal life if he became the sovereign of a religious house, still more if, as well he might, he became a bishop ; but it may be much doubted whether the lawjers of the thirteenth century would have seen in this the new birth of a natural person. They had not yet drawn any clear line between 'natural' persons and 'juristic' persons, and the monk who was elected to an abbacy became thereby persona ecclesiae, the human representative of a personified institution. Only by virtue of papal bull and royal charter could an abbot make a valid will, for ' by the common law an abbot can not have property or have executors^' We are not sure that an abbot could have inherited from a kinsman. The dual personality of a bishop seems to have been more readily admitted, still, as we shall remark below, there had been much controversy as to whether a bishop had anything to -leave by his will. It is not easily that lawyers come to think of one man as two persons, or to talk of ' official capacities ' and ' corporations sole.' We can not take leave of the monks without noticing that CivU death in medieval law monasticism is no such isolated phenomenon veiopment as it would be in modern law. Of course the relationship that °]^^of-g exists between abbot and monk is not just that which exists »»«'"'• between lord and villein, still less is it that which we see between husband and wife. But to compare these three relationships together is not the mere fetch of an advocate at a loss for arguments nor the fancy of a too subtle jurist. As a matter of history they well may have a common element. They all may be off-shoots of one radical idea, that of the Germanic mund, a word which we feebly render by guardian- ship or protection. Certain it is that our common law of husband and wife curiously reproduces some features of the law of abbot and monk, and we might understand the legal history of villeinage and the legal history of monasticism the better if we brought them into connexion with each other. 1 Y. B. 3 Hen. VI. f. 23 (Hil. pi. 2), = Y. B. 32-8 Edw. I. 356. 422 The Sorts and Conditions of Men. [bk. it. § 5. The Clergy. Legal Collectively the clergy are an estate of the realm. With position of ^j^.g constitutional doctrine we are not here concerned, nor are cterk™** we called upon to describe the organization of the clerical body; but taken individually every ordained clerk has as such a peculiar legal status; he is subject to special rules of ecclesias- tical law and to special rules of temporal law. We can not say that the clerk is subject only to ecclesiastical law while the layman is subject only to temporal law. Neither half of such a dogma would have been accepted by the state or by the church. Every layman, unless he were a Jew, was subject to ecclesias- tical law : it regulated many affairs of his life, marriages, divorces, testaments, intestate succession ; it would try him and punish him for various offences, for adultery, fornication, defamation ; it would constrain him to pay tithes and other similar dues; in the last resort it could excommunicate him and then the state would come to its aid. Even the Jews, though of course they were not members of the church, were (at least so the clergy contended) within the sphere of ecclesi- astical legislation and subject to some of the processes of the spiritual courts '- We can say no more than that the ordained clerk was within many rules of ecclesiastical law which did not affect the layman, and that it had a tighter hold over him, since it could suspend him from office, deprive him of benefice and degrade him from his orders. So, on the other hand, the clerk was subject to temporal law. It had some special rules for him, but they were not many. The clerk At the end of Henry III.'s reign, with one great and a few porai law. petty exceptions, the clerk was protected by and subject to the same rules of temporal law which guarded and governed the layman. If a clerk was slain, wounded, robbed or assaulted, the wrong-doer would be punished by the temporal law just as though the injured person had been of the laity. The clerk could own chattels, he could hold land by any tenure, he could ' Langton's Constitutions, 1222, c. 51, 52 (adopting canons of the Fourth Laterau Council) in Johnson, Canons, ii. 120; Gravamina of 1257, Mat. Par. Ohron. Maj. vi. 360-1 ; Boniface's Constitutions, 1261, o. 7, Johnson, Canons, ii. 197. CH. II. § 5.j The Clergy. 423 make contracts ; the temporal law protected his possession and his proprietary rights, it enforced his contracts, without taking any note of his peculiar status. . Even when he had to assert possessory or proprietary rights which belonged to him as the rector or persona of a church, he had to do this in the lay courts, usually by the very same actions that were competent to laymen, but sometimes by an action specially adapted to the needs of parsons ^- We count it no real exception that a clerk who had attained to the subdiaconate could not marry, for the validity of any marriage was a matter for ecclesiastical law ; and on the other hand, though the canons forbad the clergy to engage in trade, we are not aware that the lay courts attempted to enforce this rule by holding that their trading contracts were void. Then the clerk was subject to the temporal law. All the ordinary civil actions could be brought against him ; he could be sued on a contract, he could be sued for a tort, he could be sued as a disseisor, he could be sued as one who held what did not belong to him, and this although he was holding it in the name of his church. Further for any crime that fell short of felony he could be tried and punished in the common way. There are a few small exceptions. As a general rule the Bxoep- ecclesiastical courts may not take cognizance of an act of applied to violence. If a layman be assaulted these courts will be pro- ^^^ '''™''" hibited from inflicting punishment or penance upon the offender. But violence done to the person of a clerk is within their competence. As already said it is also within the com- petence of the temporal tribunals. He who has assaulted a clerk may be fined or imprisoned for his breach of the king's peace ; he may be compelled to pay damages for the wrong that he has done ; he may be put to penance for his sin ^ In such a case the clergy do not care to urge their favourite maxim that no one is to be punished twice for the same offence. But this is a small matter. In civil causes a clerk enjoys a certain freedom from arrest', but this as yet is of no great importance. On the other hand the lay courts have invented a special machinery for compelling the appearance of clerks who are 1 See above, p. 226. 2 Braoton's Note Book, pi. 444, 766 ; Oiroumspeote Agatis ; Articuli Cleri (1315) ; Statutes of the Eealm, i. 101, 171 ; BlackBtone, Com. iv. 217. 3 Bracton, f. 442 b, 443 b. clergy. 424 The Sorts and Conditions of Men. [bk. u. sued in personal actions. They direct the bishop of the diocese to produce such clerks and will proceed against his barony if he be negligent in this matter. For this purpose the clergy are treated as forming part of his familia — as being within his mvmd, we might say, — and the episcopal barony is a material pledge for their appearance ' But this again is a small matter and is far from being a privilege of the clergy; indeed they vigorously, but vainly, protest against this treatment*. Benefit of It remains for us to speak of the one great exception, that which is to be known for centuries as the ' benefit of clergy". It comes to this, that au ordained clerk, who commits any of those grave crimes that are known as felonies, can be tried only in an ecclesiastical court, and can be punished only by such punishment as that court can inflict. But we must descend to particulars, for any generalities may be misleading. A clerk is charged with a murder ; it is the sheriff's duty to arrest him. Probably his bishop will demand him. If so, he will be de- livered up, but the bishop will become bound in a heavy sum, a hundred pounds, to produce him before the justices in eyre. The bishop can keep him in prison and very possibly will do so, for should he escape the hundred pounds will be forfeited. In the middle of the thirteenth century it is matter of complaint among the clergy that owing to this procedure clerks may languish for five or six years in the episcopal gaol without being brought to trial*. At last the justices come and this clerk is brought before them, or some other clerk, who has not yet been arrested, is indicted or appealed before them. In the end it comes about by one means or another that they have before them a clerk indicted or appealed of felony. And now we may follow the words of the enrolment that will then be made :— ' And the said A. B. comes and says that he is ' a clerk and that he can not — or, that he will not — answer here ; ' And the ofiicial of the Bishop of X comes and demands him ' as a clerk— or, comes and demands his court.' In Bracton's ' Braoton, f. 443 ; Note Book, pi. 143, 276, 407, 576, 802. '' Gravamina of 1257, Mat. Par. Chron. Maj. vi. 354-5. ° Hale's treatment of this matter in his Pleas of the Crown is full and good, but he says little of times so remote as those with which we are dealing. * Grosseteste's protest, Ann. Burton. 424 ; Mat. Par. Chron. Maj. vi, 355-6 ; Ann. Burton, 417; Johnson, Canons, ii. 193 ; Court Baron (Selden Society) 19; Select Pleas of the Crown, pi. 160. CH. II. § 5.J The Clergy. 425 day the clerk will thereupon be delivered to the bishop or his officer and no inquest will be made by the justices as to his guilt or innocence '- But before the end of Henry III.'s reign the procedure will not be so simple''' The roll of the court will go on to say^ — ^' Therefore let him be delivered; but in ' order that it may be known in what character (qualis) he is to ' be delivered [or, in order that the king's peace may be pre- ' served,] let the truth of the matter be inquired of the country. 'And the twelve jurors and the four neighbouring townships • say upon their oath, that he is guilty, [or, not guilty] and 'therefore as such let him be delivered.' In other words the justices proceed to take 'an inquest ex officio.' This is not a trial; the clerk has not submitted to it; he has not pleaded; but a verdict is given. If this be favourable to the accused he is acquitted, at least in so far as a secular court can acquit him, but if it goes against him, then he is delivered to the bishop". In the one case his lands and goods, if they have been seized by the royal officers, are at once restored to him, unless he has been guilty of flight and has thus forfeited his chattels^; in the other case they will be. retained until he has been tried, and their fate will depend on the result of his triaP. For tried he has not yet been. He will be tried in the bishop's court. 1 Bracton, f. 123 b. Early examples will be found in Select Pleas of the Crown, e.g. pi. 49 (a subdeacon), 117 (a subdeaoon), 123, 140, 160, 189 (an acolyte), 197 and Note Book, e.g. pi. 548 (a prior). ' Coke, 2nd Inst. 164, rightly observes that the change takes place between Bracton (f. 123 b) and Britton (vol. i. p. 27). He attributes it to Stat. West. I. (1275) cap. 2. But as a matter of fact the eyre roUs of the last years of Henry IH. show that the change has already taken place. See, for example, the roll of a Cambridgeshire eyre of 45 Hen. III. (Assize Bolls, No. 82) passim. We know from Matthew Paris, Chron. Maj. iv. 614, that in 1247 some new rule was made about criminous clerks and that the clergy disliked it, but we have not got the text of this decree. Despite the commentaries of Coke and Hale, we may doubt whether the Statute of Westminster made any definite change in the law. The new king sanctions the clerical privilege but teUs the prelates that they must be careful in the matter of purgation, and that otherwise he will be obliged to make some change. Thereupon in 1279 Abp. Peckham made some effort to improve the procedure in the spiritual court ; Johnson, Canons, ii. 267. ^ This account is based chiefly on the Assize Boll just mentioned. Some- times if the verdict be favourable the judgment is ' Ideo quietus.' " Y. B. 33-5 Edw. I. p. 57. 5 Hale, P. C. ii. 383. The clergy protested against the forfeiture saying that it was a second punishment for a single offence ; Gravamina of 1257, Mat. Par. vi. 356. 426 The Sorts and Conditions of Men. [bk. ii. Trial in the Of what goes On in the bishop's court we unfortunately the church, know but too little ; but we have reason to believe that before the end of the century its procedure in criminal cases was already becoming little better than a farce. In criminal cases the canon law had adopted the world-old process of compurga- tion and here in England the ecclesiastical courts had never reformed away this ancient mode of proof. The blame for this should not fall wholly upon the prelates. Very possibly the lay courts would have prevented them from introducing in criminal cases any newer or more rational form of trial. Had any newer form been introduced, it would have been that ' inquisitorial ' procedure which historians trace to the decretals of Innocent III.' In the twelfth century we find an archdeacon who is accused of poisoning his archbishop directed to purge him- self with three archdeacons and four deacons I Lucius III. told the bishop of Winchester that he was too severe in investigating the character of compurgators '. Bishop Jocelin of Salisbury cleared himself of complicity in the murder of Becket with four or five oath-helpers*. Hubert Walter sitting as archbishop, for- bad that more compurgators than the canonical twelve should be demanded"- Shortly before this we find the bishop of Ely offering to prove with a hundred swearers that he took no part in the arrest of the archbishop of York ". No doubt in theory the ecclesiastical judge was not in all cases strictly bound to send the clerk to 'his purgation.' If there was what was technically known as an accusatio, a definite written charge preferred by the person who was injured, the judge might hold that the accusation was fully proved by the accuser's witnesses and might convict the accused '- But the proof required of an accuser by the canon law was a rigorous proof, and from all we can hear the common practice in England seems to have been to allow the clerk to purge himself. Archbishop Peckham at the instance of Edward I. vaguely ordered that this should not ^ Pournier, Lea ofaoialitds au moyen &ge, 262-281. No doubt this procedure was used in the case of minor offences ; but we are speaking of felonies, " Letters of John of Salisbury, No. 122, ed. Giles, i. 170. 3 c. 9, X. 5, 34. The whole of tit. 34 bears on this matter. * Sarum Charters, 85. ' Johnson, Canons, ii. 81, 91. " Hoveden, iii. 250. ' Pournier, op. cit. 235-256. ' Thus in the case of the archdeacon accused of poisoning the archbishop, the accuser could not make good the charge ' secundum subtilitatem legum et canonum ' ; see John of Salisbury's letter cited above. CH. II. § 5.J The Clergy. 427 be done too readily ' ; in the middle of the fourteenth century Archbishop Islip made a not very earnest effort for the same end"; but the whole procedure was falling into contempt. Already in certain bad cases the lay courts were forbidding the bishops to admit the accused clerks to their purgation ", that is, according to the old theory, were forbidding that these accused clerks should be tried at all. So early as 1238 we find the bishop of Exeter in trouble for having sent to purgation a subdeacon who had been outlawed on a charge of murder, and though the clerk has purged himself he is compelled to abjure the realm*. In Edward I.'s day the king's justices could treat a canonical purgation with all the scorn that it deserved ^ If he failed in his purgation the clerk was convicted and Pimist- punished. At least in theory there were many punishments at felonious the bishop's disposal. The chief limit to his power was set by the elementary rule that the church would never pronounce a judgment of blood. He could degrade the clerk from his orders and as an additional punishment relegate him to a monastery or keep him in prison for life. He could inflicj; a whipping * and Becket, it seems, had recourse even to the branding iron '. One of the minor questions in the quarrel between Thomas and Henry was as to whether an ecclesiastical court could exile a convicted clerk or compel him to abjure the realm ^ Innocent III. told the bishop of London that clerks convicted of larceny or other great crimes were to be first degraded and then closely imprisoned in monasteries'. In 1222 a church council under Stephen Langton seems to have condemned two of the laity to that close imprisonment which was known as immuration ; the culprits had been guilty of fanatical blasphemy". In 1261 the Constitutions of Archbishop Boniface required that every 1 Johnson, Canons, ii. 267 ; Stat. West. I. c. 2. = Constitution of 1351, Johnson, Canons, ii. 413. * Bertmis case, Eyley, Plao. Pari. 56 ; Bolls of Parliament, i. 40 ; Hale, P. C. ii. 328. • Eot. CI. 22 Hen. III. m. 17 d ; compare Braoton, f. 134 b. " Bolls of Pari. i. 146. It is adjudged that two persons have committed adultery, though they have purged themselves in court Christian. The lady's compurgators were women. « Herbert of Bosham, Materials for History of Becket, iii. 265. ' Fitz Stephen, Materials, iii. 45-6. » Herbert of Bosham, Materials, iii. 267, 270. » 0. 6, X. 5, 37. 1" Maitland, The Deacon and the Jewess, Law Quarterly Beview, ii. 153, 165. 428 The Sorts and Conditions of Men. [bk. ii. What persons were entitled to the priyilege. bishop should keep a proper prison and declared that every clerk convicted of a capital crime should be kept in gaol for the rest of his life^- This then was the punishment due to felonious clerks ; we fear that but few of them suffered it. The privilege was not confined to clerks in orders, for it was shared with them by the monks, and there seems no reason for doubting that nuns were entitled to the same privilege, though, to their credit be it said, we have in our period found no cases which prove this'- On the other hand it had not as yet become the privilege of every one who could read or pretend to read a verse in the bible. The justices insist that ordination must be proved by the bishop's letters. It is still regarded rather as the privilege of the church than of the criminous clerk ; if his bishop does not claim him he will be kept in prison, perhaps he will be compelled, as a layman would be compelled, to stand his trial ^. We are not able however to indulge the hope that the bishop allowed the criminal law to take its course unless he had some reason for believing that the clerk was innocents The plea rolls seem to prove that his ofiicial sits day after day in the court of the justices in eyre and as mere matter of course ' demands ' every clerk who is accused, and in every eyre many clerks will be accused of the worst crimes and their neighbours will swear that they are guilty. By marrying a second time, or by marrying a widow, the clerk, who thus became higamus, forfeited his immunities : — this rule promul- gated by the Council of Lyons under Gregory X. was at once received in England and a retrospective force was attributed to it by a statute of Edward I.^ ' Johnson, Canons, ii. 207-8. 2 Hale, P. C. ii. 328, says 'Nuns had the exemption from temporal juris- diction, but the privilege of clergy was never allowed them by our law.' But elsewhere, P. C. ii. 371, 'Anciently nuns' professed were admitted to the privilege of clergy.' He cites a, case from 1348, Pitz. Abr. Garone, pi. 461, which speaks of a woman— she is not expressly called a nun — being claimed by and delivered to the ordinary. ' Select Pleas of the Crown, pi. 185. At a later date the judges would allow a man who could read ' his clergy,' though the ordinary did not claim him ; Hale, P. C. ii. 873. * This hope is expressed by Dr Stubbs, Const. Hist. § 722. ' c. un. in vi°. 1. 12; Statute 4 Edw. I. Be Bigamis. For an early case of 'bigamy' see Y. B. 80-1 Edw. I. p. 530. Fleta, p. 51, speaks as though the rule which excluded bigami from privilege had been revoked by the Council of Lyons. There must be some mistake here. CH. II. § 5.J The Clergy. 429 It is probable that already in the thirteenth century a clerk What charged with high treason, at all events with one of the worst were forms of high treason, such as imagining the king's death or privilege, levying war against him, would in vain have relied on the liberties of the church'. There seems even to have been some doubt as to whether counterfeiting the king's seal was not a crime so high as to exceed the limits of the clerical im- munities^ At the other end of the scale the clerk charged with a mere transgressio, a misdemeanour we may say, enjoyed no exceptional privilege but could be fined or imprisoned like another man. Henry II. within a very few years after Becket's death and while the whole of Christendom was ringing with the fame of the new martyr, was able to insist with the assent of a papal legate that forest offences were not within the benefit of clergy^ and before the end of the next century the lay courts were habitually punishing the clergy for their trans- gressiones. However it should be understood that the full extent of the clerical claim had been and was that not merely every criminal charge but every personal action against a clerk was a matter which lay outside the competence of the temporal tribunal. This claim died hard ; it was asserted near the end of Henry III.'s reign by a constitution of Archbishop Boniface ; Bracton had to treat it with respect, though he rejected it. His doctrine even as to the felonies of clerks is a curious and we may say a very unclerical one. The king's court does not try the accused clerk; but there is no sound principle which prevents its doing so. Still the appropriate punishment for the felonious clerk is degradation, and this the lay tribunal cannot inflict. The logical result of this would be that the king's court should try the clerk and, should he be convicted, hand him over to the ordinary, not for trial, but for punishment. How- ever at present this is not the practiced Probably it is in consequence of such reasoning as this that a few years later the king's justices will not deliver up a clerk until they have first taken an ' inquest of office ' as to his guilt. Thereby they do their best to lessen the harm that is done by an invidious and 1 Hale, P. C. ii. 330. 2 Bm-ton's case, Kyley, Plao. Pari. 56 ; Bolls of Pari. i. 40 ; Hale, P. G. li. 381-2 ; Bracton, f. 413 b, allows the privilege in this case. ' Dioeto, i. 410. * Bracton, f. 401, 401 b, 407, 411. rendon. 430 The Sorts and Conditions of Men. [bk. it. mischievous immimity. The criminal will purge himself in the court Christian, but a jury of his neighbours will have sworn that he is guilty. Further we must remember that all along the justices insist that though the clerk is not tried by a secular tribunal, none the less he can be and ought to be accused before it, and further that he can be outlawed if he does not appear when he has been accused, and the conse- quences of outlawry are somewhat terrible. In this way the criminal law has some hold over the clerk, though for centuries yet to come the benefit of clergy will breed crime and impede the course of reasonable and impartial justice*. The Con- Here we might prudently leave ' the benefit of clergy,' for stitutious or J oj ' of cia- to speak of its earlier history is to meddle with the quarrel between Henry II. and Becket. Protesting however that it is not our part to criticize men or motives or policies, we are none the less bound to state, and if possible to answer, certain purely legal questions. These are in the main three : — (1) What was the scheme for the treatment of criminous clerks that Henry proposed in the most famous of the Constitutions of Clarendon ? (2) What was the relation of that scheme to the practice of his ancestors ? (3) What was its relation to the law of the catholic church as understood in the year 1164 ? (!) To the first question our answer will be brief. We must admit that historians have read the celebrated clause' in • As regards the transgressiones (trespass and misdemeanour are bnt slowly differentiated from each other) of clerks, the history of this matter may be traced thus : — In 1176 Henry II. concedes that no clerk shall be drawn into the lay court in any criminal cause or for any offence, except offences against forest law ; Diceto, i. 410. Bracton, f. 401 b, says that every day clerks are sued in the lay courts both on contracts and for trespasses. In 1237 the clergy claim exemption in aU personal actions ; Ann. Burton. 254. In 1257 they repeat the protest ; Mat. Par. vi. 357. In 1258 Grosseteste repeats it, and about this time Eobert de Marisco asserts it in large terms ; Ann. Burt. 424, 426. In 1261 it is asserted by the Constitutions of Abp. Boniface ; Johnson, Canons, ii. 185. It covers contract and quasi-contract, delict and quasi-delict. In 1263 the Pope, who has reasons for not quarrelling with Henry HI. , will not confirm the constitutions, bnt implores the king to give way ; Bull of Urban IV. Foedera i. 424. The conflict is now nearly over ; but even in 1279 a clerk is still, though vainly, protesting that an action for assault and wounding can not be brought against him in the king's court ; Hale, P. 0. ii. 325. ' Maitland, Henry II. and the Criminous Clerks, Eng. Hist. Eev. vii. 224. ' Const. Clar. c. 3 : ' Clerici rettati et acousati de quacuuque re, aummoniti a iustitia regis venient in curiam ipsius, responsnri ibidem de hoe unde videbitur curiae regis quod ibidem sit respondendum, et in curia ecolesiastioa CH. II. § 5.] The Clergy. 431 various ways; but for our own part we cannot doubt that it means this : — ^A clerk who is suspected of a crime is to be Hemy ii.'s brought before the temporal court and accused there ; unless he ^ *"®' will admit the truth of the charge, he must in formal terms plead his innocence ; this done, he will be sent to the ecclesi- astical court for trial ; if found guilty he is to be degraded from his orders and brought back to the temporal court; royal officers will have been present at his trial and will see that he does not make his escape ; when they have brought him back to the temporal court, he will then-;— perhaps without any further trial, but this is not clear — be sentenced to the- .lay- man's punishment, to death or mutilation. Henry does not claim a right to try or to pronounce judgment upon the criminous clerk ; on the contrary he admits that the trial must take place in the ecclesiastical court ; but he does insist upon three principles : (i) that the accusation must be made in the lay court, which will thus obtain seisin of the cause and be enabled to watch its further progress ; (ii) that royal officers are to be present at the trial; (iii) that the clerk — or rather the layman, for such he will really be — who has been degraded from his orders for a crime, can be punished for that crime by the temporal power'. To this scheme Becket objected in the name of the church's law, and it is certain that he objected not merely to the first two of these three rules but also to the third, and this on the ground that it would punish a man twice over for one offence and thus infringe the maxim Nee enim Beus iudicat bis in idipswm^. nnde videbitur quod ibidem sit respondendum ; ita quod iustitia regis mittet in curiam sanctae ecclesiae ad videndum qua ratione res ibi tractabitur ; et si clericus convictus vel oonfessua fuerit, non debet de oetero eum eoelesia tueri.' ' The constitution was thus understood by Beuter, Geschichte Alexanders dea dritten, i. 372-3. Dr Stubbs, Const. Hist. i. 801, says that Henry proposed that ' clerical criminals should be tried in the ordinary courts of the country.' Henry may at one time have gone as far as this ; but we can not believe that this is the scheme defined by the constitutions. 2 Materials for the History of Becket, ii. 28, iii. 281 ; iv. 39, 96, 202. No point in the controversy seems better attested by Beoket's own friends and biographers than that he insisted on this argument. This however seems fatal to that interpretation of the constitutions which would make Henry propose that criminous clerks shall be treated like criminous laymen. The famous Nemo hit in idipsum may be ultimately traced to some words of the prophet Nahum (i. 9) which in our bibles appear as 'Affliction shall not rise up the second time.' Gratian has much to say of this maxim in D. 3 de poen. 432 The Sorts and Conditions of Men. [bk. ii. Henry's (2) We turn to our second question. Did this scheme andTa^st fairly represent the practice of Henry I.'s day ? We note that history. -^ ^^^^ ^^^ profess to represent the practice of Stephen's day. For legal purposes Stephen's reign is to be ignored, not because he was a usurper, but because it was a time of war and of 'unlaw.' Sixty years later this doctrine still prevails ; a litigant can not rely on what happened in Stephen's reign, for it was not a time of peace'. Still, though the son of the Empress is but applying a general doctrine to a particular case, his pregnant assertion that the constitutions express his grand- father's customs seems somewhat like an admission that those customs had in some particulars gone out of use under his immediate predecessor. Henry's So sparse is the evidence directly bearing on this question iSt con°°^ that we gladly catch at any admission made by either of the tested. parties to the quarrel, and we may not unfairly urge that in this case judgment should go by default. Henry did assert repeatedly and emphatically with the concurrence of his barons and with the approval of many bishops that he was but restoring the old customs. Becket and his friends, so far as we can see, would not meet this allegation". When one of the martyr's biographers reminds us that Christ said, not ' I am the custom,' but ' I am the truth,' we can not but infer that on the question of fact Henry was substantially in the right. The archbishop and his partizans are fond of speaking of 'the so-called customs,' as 'pravities' and 'abuses;' but they will not meet the king on his own ground'. Earlier '^^^^ premised, we look for direct evidence to the reigns of Th ' r *^® Norman kings. First we read how the Conqueror ordained queror's that no bishop or archdeacon should administer the episcopal laws in the hundred court, nor bring to the judgment of secular men any cause relating to the rule of souls. Such causes the bishops are to decide, not according to hundred law, but according to the canons and the episcopal laws. The secular ' Braoton's Note Book, pi. 251 : ' non fuit seisitua in tempore illo nisi tan turn in tempore Stephanl Begis quod fuit werrinum.' " See Pauli, Oesohichte von England, iii. 44 ; Beuter, Geschichte Alexanders des dritten, i. 369-370. 3 The strongest denial that the so-called customs were customs, is that which comes from Fitz Stephen, Materials, iii. 47 : ' Sed scriptae nunquam prius fuerant, nee omnino fuerant in regno hae consuetudiues. ' CH. 11. § 5. J The Clergy. 433 power is to aid the church against those whom she has excommunicated. The conduct of the ordeal as a specially ecclesiastical process is declared to be the bishop's business^ This tells us little that is to our point. William assumes that all men know what causes are spiritual, what secular. The only matter on which he speaks definitely is the ordeal, and here the two powers will cooperate harmoniously ; the bishop will preside at the ceremony but doubtless the order that sends a man to the fire or to the water will, at least in very many cases, be the order of the hundred court. Of any immunity of clerks from secular jurisdiction or temporal punish nient there is no word. The author of the Leges Henrici is already borrowing from The Leges foreign canonists and we can not tell how far he is stating customs that actually prevail in England. He says plainly enough that no accusation, be it for grave crime, be it for light offence, is to be brought against any ordained clerk save before his bishop". This certainly is at variance with one part of Henry II.'s claim, for Henry insisted that the first step in a criminal cause should be taken in the king's court ; but it does not touch the greater question of double punishment. We turn from general statements to recorded cases. We Precedents can find very few and most of them may be called ' state trials,' of'cierk"* and it is not to state trials that we can trust for impartial applications of medieval law; but Domesday Book seems to tell of a clerk who was in peril of death or mutilation, for his body was in the king's mercy'. Lanfranc had no difficulty in advising the Conqueror that he might condemn his half-brother Odo to imprisonment and disherison on a charge of rebellion and treason, though Odo pleaded an immunity from secular justice*. The king, so the great lawyer thought, might dis- tinguish between the Earl of Kent and the Bishop of Bayeux though these two persons happened to be one man. But the ' Sohmid, Gesetze, p. 357; Stubbs, Select Charters. There can we think be little doubt that in this ordinauoe iudieium is used in a technical sense for the ordeal, iudieium Dei. " Leg. Hen. Prim. 57, § 9 : ' De illis, qui ad saoros ordines pertinent, et eis, qui sacris ordinibus promoti sunt, coram- praelatis Buis est agendum de omnibus inculpationibus, maximis et minoribus.' " D. B. ii. 7 : ' Quidam clericns Comitis B[u8tachii] .... iudicatus est esse in misericordia regis et de omni eessu suo et de corpore sue' * Freeman, Norm. Conq. iv. 684. P. M. 28 434 The Sorts and Conditions of Men. [bk. ii. case is not a very decisive one, for the punishment did not touch life or member and very probably Lanfranc could have shown to the satisfaction of all canonists that the warlike Odo had forfeited every clerical privilege by his scandalously mili- tary life\ Of the trial of Bishop William of Durham for a treacherous rebellion against Rufus a long and lively report has come down to us^ The bishop repeatedly and in strong clear terms asserted his exemption from temporal justice : — he should be tried according to the sacred canons in a caiionically con- stituted court. It will not satisfy him that among his judges there is his own archbishop and the archbishop of Canterbury and many bishops, for they are not clad in their episcopal vestments, they are mixed up with the lay nobles and are sitting under the king's presidency. Lanfranc baffles and defeats him; judgment is pronounced upon him and pro- nounced by a layman, Hugh of Beaumont. The bishop appealed to Rome, but never prosecuted his appeal. Here the sentence merely was that the bishop's fief was forfeited, and the severest canonist could not deny that a purely feudal cause was within the competence of the king's court, nor perhaps could he have refuted Lanfranc's opinion that if after the judgment of forfeiture the bishop would not surrender his fief, he might lawfully be arrested'. Still less can be made of King Stephen's proceedings against Bishop Roger of Salisbury, his nephews and his son. The king took advantage of an affray between the men of the bishops and the men of Earl Alan ; he impleaded the bishops because their men had broken his peace, and by way of satisfaction demanded a surrender of their castles. This they refused. He then imprisoned them, mal- treated them in gaol and went so far as to put a rope round the chancellor's neck ; he thus obtained the desired fortresses. An ecclesiastical council held by his brother, the legate, cited him ; the immunity of clerks was strongly asserted; the king's proceedings were condemned, and it is even said that he did 1 Thus in Leg. Hen. 57, § 9 : ' Cum olerioo qui uxorem habeat et firmam teneat laicorum et rebus extrinaeois seoulariter deditus est, secnlariter est disoeptandum.' 2 Symeou of Durham, i. 170. Freeman, William Bufus, i. 89, tells the story at length. 3 The bishop relies less on the mere fact of hia being a bishop than on this coupled with the fact that he has been and is dispossessed. ' Spoliatus [epis- copus] ante omnia debet restitui ' is the burden of his plea. CH. II. § 5.] The Clergy. 435 penance for them ; also at one time or another he appealed to Rome ; but he kept the castles'. However before this Stephen had made a momentous concession, he had solemnly sworn that justice and power over ecclesiastical persons and over all clerks and their possessions should belong to the bishops, and by this oath he must, so we think, be taken to have admitted whatever claims of immunity could be fairly made in the name of canon law". Then concerning the treatment of criminous clerks in his reign we have a valuable story, one which John of Salisbury, writing in the name of Archbishop Theobald, reported to the Pope. Osbert an archdeacon was accused of having poisoned Archbishop William of York. The charge was preferred by a clerk who had been in the service of the dead prelate. It was made in the presence of King Stephen and the bishops and barons of England. The accuser was ready to prove his case by the hot iron or the boiling water, by battle, or by any other proof. Osbert relied on his clerical privilege and refused to be judged by laymen. Pledges were given on both sides for the further prosecution of the suit ; they were given to the king, for the king insisted that, because of the atrocity of the crime and because it was in his presence that the accusation had been made, the case was within his jurisdiction. We and our brethren, says Theobald, protested. Now Stephen is dead and we have had the utmost difficulty in getting Osbert out of King Henry's hands. We ordered him to purge himself; but he has appealed to you'. From such isolated instances as these it would be impossible Summary, to extract any definite results for the history of law ; but, while they are not inconsistent with Henry's allegation about the customs of his grandfather, they seem to show that the canonical trial, which Henry was willing to grant, had not always been granted, even by Stephen*. As to the law that ' Will. Malmesb. Gesta Begum, ii. 548-554 ; Henr. Huntingd. 265 ; Gesta Stephani, 47 ; Will. Newb. i. 35 ; Gervase Cant. i. 104. * Second Charter of Stephen ; Statutes of the Eealm, Charters p. 3 ; Will. Malmesb. Gesta Begum, ii. 541 : ' Ecclesiasticarum personarum et omnium olericorum et rerum eorum, iustitiam et potestatem, et distributionem bonornm eeclesiasticorum, in mann episooporum esse perhibeo et confirmo.' 8 Letters of John of Salisbury (ed. Giles) No. 122. William of Newburgh, i. 80, treats the story of the poisoned chalice as untrue and absurd. * Anselm had some difficulty in preventing Henry I. from enforcing the canons against married priests by pecuniary fines. Eadmer, Hist. Nov. 172-5-6. 28—2 436 The Sorts and Conditions of Men. [bk. it. prevailed in England before the Conquest little is known and little could be profitably said in this context, for the Con- queror's ordinance must be treated as the beginning of a new era^. However when King Alfred ordains that the man-slaying priest is to be unhallowed by his bishop and then delivered up from the church, unless his lord will compound for the wergild, he is laying down one of the main principles for which Henry contended^. If we would pursue the question behind the Norman Conquest, it is much rather the law of France than the law of England that should be studied. At least in this matter the Conqueror was an innovator and the terms which he made with those who were to be the rulers of the English church were terms made by one who was not an Englishman with those who were not Englishmen. The early history of clerical privileges on the continent of Europe is a long and a dark tale and one that we can not pretend to tell. Henry II.'s scheme was not unlike that which Justinian had sanctioned^ In Henry's day this resemblance was perceived by the learned and was much in his favour : — he was offering the clergy what the leges, the almost sacred leges, gave them*. But the practice which had prevailed in Gaul was connected rather with the Theodosian Code than with Justinian's legislation and under the Merovingian and Carlovingian kings the Frankish clergy had not been able to obtain such liberal terms as Henry was willing to concede at Clarendon^ During the age which saw the Pseudo-Isidore and his fellows at their work, the age which leads up to the pontificate of Gregory VII., the clerical claims were advancing. We think it very possible that Lanfranc would have demanded and the Conqueror conceded the general ^ See Stubba, Const. Hist. § 87 ; Schmid, GloBsar, s. v. Geistliche. ^ Alfred, 21. See Sehmid's note. The Latin version is important : ' Si quia preabyter hominem occidat, capiatur, et totum unde sibi mansionem emerat, et exordinet eum episeopus, et tunc ab ecolesia reddatur.' Henry reading this in the twelfth century might well say that he was fulfilling its spirit, if not its letter. ' Nov. 83 ; Nov. 123, 21 § 1 ; Hinaohius, Kirohenreoht, iv. 794-7. 4 Summa Causae (Materials, iv. 202) : ' Epiaoopi dioebant secundum leges seculi elericoa exauotoratos curiae tradendos, et poat poenam spiritualem corporaliter puniendos.' » Loning, Kirchenreoht, i. 304, ii. 516; Hinsohius, op. cit. iv. 849-64; Nissl, Geriehtsstand des Clerua; Brunner, D. B. G. ii. 811-320; Schroder, D. E. G. 179. The story is elaborate beoauae it must distinguish between (1) bishops, (2) priests and deacons, (3) the inferior clergy. CH. II. § 5.] The Clergy. 437 principle that the trial of the accused clerk must take place before the spiritual forum ; but we may well doubt whether more than this would have beea conceded or even demanded, whether as much as this could always be obtained. Of what happened during Stephen's troubled reign we know all too little, but the clerical claims were still advancing, were taking an accurate shape in the Decretum Gratiani, and it is not unlikely that Stephen was forced to allow that only before a spiritual court can a clerk be accused, though even from this rule he might hope to maintain some exceptions^. (3) This leads us to our third question : Was Becket Henry's compelled by the law of the church, as it was understood in the canon law. year 1164, to reject Henry's constitution ? We must dis- tinguish. There were two particulars in the plan to which a canonist bred in the school of Gratian was entitled and bound to refuse his assents A clerk in orders ought not to be accused of crime before the temporal judge, and the mission of royal officers to the church's court can be regarded as an insult to the church's justice. We can not say that these matters were matters of detail ; Henry thought them of grave import- ance ; but they become insignificant when set beside the question of double punishment. Now as regards this vital question, Becket propounded a doctrine which, so far as we are aware, had neither been tolerated by the state nor consecrated by the church. He asserted that the state must not punish the criminous clerk for that crime for which he has already suffered degradation. In 1164 a good deal had lately been written about this matter by the most renowned canonists of the age. We do not say that there was no room for doubt ; there were obscure passages in the Decretum which needed comment ; but we can say that two of the most famous masters of the canon law had considered and overruled the opinion of St Thomas, while we can name no writer who had maintained it. What is more, that opinion, though owing, to his martyr- dom it was suffered to do immeasurable mischief in England by fostering crime and crippling justice, was never consistently 1 According to William of Newburgh, i. 140, it was said that a hundred murders had been perpetrated by clerks during Henry II.'s reign before the king took action. ^ The pope seems to have condemned this constitution as a whole ; Materials, V. 74. He was not called upon to say how much of it was tolerable. 438 The Sorts and Conditions of Men. [bk. ii. maintained by the canonists; had it been maintained, no degraded clerk would ever have been handed over to the lay power as a heretic or a forger of papal bulls. As a general principle of law Backet's theory about double punishment was condemned by Innocent III. ; the decree which condemns it is to this day part of the statute law of the catholic church*. 1 As to this matter of double punishment, Henry's canonists based his case on two passages of the Pseudo-Isidore which appear as co. 18, 31, C. 11, qn. 1. These say in effect that in certain oases an offending clerk after being degraded is curiae tradendus. Does this mean that he is to be delivered to the lay court for further punishment ? Henry's party said Yes ; Becket's No. Our question ought to be, not what these words meant for the Pseudo-Isidore, still less what they meant for Arcadius and Honorius, from whom he stole them, but what they meant for the best ecclesiastical lawyers of the middle of the twelfth century. In 1164 five great canonists have lately had or are just having their say, namely, Gratian, Paucapalea, Eoland (now Alexander III.), Eufinus and Stephanus Tornaoensis. We can hardly bring ourselves to doubt that Gratian (see the dicta on co. 26. 30. 47, e. qu.) would have agreed with Henry's contention. And the same must be said of Paucapalea (Summa, ed. Sohulte, p. 78) and Eoland (Summa, ed. Thaner, p. 25). Then Eufinus distinctly says that the clerk is to be degraded ' et dimittetur post hoc iudioi secundum leges publicas puniendus ' (Summa, ed. Schulte, p. 274). Stephanus considers the opinion that Becket adopts and rejects it. Some say that the degraded clerk is not to be accused before the secular judge, since thus he will be tried twice for one offence. Others say that there is no occasion for a further accusation, but that he can be punished by the secular judge without a second trial. But the better opinion is, says Stephen, that the secular judge should try him ; the Authenticum [=Nov, 123. 21 § 1] supports this doctrine (Summa, ed. Sohulte, p. 212). An anonymous author of this period (Summa Eolandi, ed. Thaner, p. 293) has no doubt that the canon law sanctions it. In later times the canonists admitted that there were various oases in which the degraded clerk was to be delivered to the lay power for further punishment. See the gloss on o. 18, C. 11, qu. 1 ; also Fournier, OfScialites, 67-8. In 1222 Stephen Langton handed over to the lay power a deacon whom he had degraded for turning Jew and the lay power burnt him ; see Law Quart. Eev. ii. 153. Innocent III. (c. 7, X. 5, 20) ordained that the forgers of papal letters should be handed over, and further declared (c. 27, X. 5, 40) that this procedure was sanctioned by the doubtful passages in the Decretum. If once it be allowed that there is here no breach of that fundamental maxim which requires that a man be not punished twice for one offence, then there remains no more than a question about the relative gravity of offences : — is, for example, the forgery of a decretal a worse crime than a murder? Lastly, since Becket was willing to add imprisonment for life to degradation, provided that botli punishments came from the ecclesiastical court, it is plain that the principle for which he contended was a highly technical principle condemning not two punishments but two judgments. This long note has seemed necessary, for in England it has been too readily assumed by both parties to the controversy that all Becket's claims were sanctioned by the law of the church. We dare not speak confidently of such a matter but have grave doubts about the truth of this assumption. CH. II. § 5.J The Clergy. 439 Curiously enough that point in Henry's scheme which in the eyes of the canonist must have seemed the least defensible, was successfully defended. As we have seen, his successors maintained the rule that clerks can be haled before the king's justices and accused of capital crimes. On the other hand, the not uncanonical principle which would have brought back the degraded clerk to hear a sentence in the royal court was abandoned. The result was lamentable. One small matter remains to be noticed. It has sometimes The been assumed by English writers that the clergy were willing of clerks, to admit a certain measure of reciprocity, that they were willing that their own lives should be protected only by ecclesiastical law and ecclesiastical tribunals and that this is proved by the fate of the archbishop's murderers. Now it is true that a clerk was forbidden by the law of the church to go before a lay court and seek a judgment of blood ; but to say this is one thing, to say that the lay murderer of a clerk is not to be punished by the lay prince is quite another thing, and we are not persuaded that any one ever said it except when he was in a logical strait. As we read the chronicles, Henry was blamed by his contemporaries for not having brought the murderers to justice and put them to death, though it was admitted by some that he was in a very awkward position : — he would be blamed if he let them escape, he would be blamed if he punished them, for this would be casting upon them the burden of a crime of which in common opinion he himself was not guiltless. He thought it best that they should go to the pope'. Afterwards he declared that he had been unable to arrest them**. It would seem indeed that just for a very few years some English ecclesiastics were driven by the stress of ' Will. Newb. i. 163 : ' Sive autem parceret homioidis'illls, sive non, con- siderabat proclives esse homines ad male sentiendum de eo. Nam si parceret , Bceleratissimis, tanti mali ausam vel auctoritatem praestitisse videretur. Si vero in eis plecteret, quod absque eius mandate non attentasse putabantur, utrobique nequissimus diceretur. Idcirco parcendum eis duxit.' Another account, Materials, iv. 162, says that Henry knew that he could not make his peace with the church, unless he punished the murderers by death (' et traderet Sathanae in interitum carnis '), and yet was ashamed to punish them, because the crime had been committed for his sake. And again of the knights it is said (p. 163) that they sought the Pope when it had become clear that they must fall into the hands either of God or of man. 2 Gesta Henrioi, i. 32 ; Hoveden, ii. 85 : ' malefaetores illos, qui . . . archi- episoopum oociderunt habere non poterat.' 440 The Sorts and Conditions of Men. [bk. ii. Becket's logic to say that they would be content if the murderers of clerks were handed over to the mild judgments of the church; or perhaps the true story is that this assertion was put into their mouths as a reductio ad absurdum of their demands by those who though clerks and bishops were the king's clerks. At any rate very soon after the martyrdom Archbishop Richard, the martyr's successor, wrote to three of the martyr's most deadly foes, who were by this time three prelates of the English church and the three principal justices of King Henry's court, he wrote to Richard of Ilchester, John of Oxford and Geoffrey Ridel, and told them that the doctrine which would deal thus tenderly with lay offenders was a damnable opinion and utterly at variance with canon law'. Repudiating the theories of his sainted predecessor he assured his three suffragans that a layman might be first excom- municated by the church and then hanged by the state without being punished twice for one offence^ Henry could now make terms ; he had something to sell. In 1176 a papal legate conceded that he might punish clerks for breaches of the forest law, and in return the king granted that the lives of clerks should be protected as well as, or even better than, the lives of laymen'. 1 He seems to have referred to oo. 39, 47, C. 23, qu. 5; o. 2, C. 15, qu. 6; CO. 19. 20, C. 11, qu. 1. " Trivet, an. 1176 (Eng. Hist. Soc), p. 82 : ' In ecoleaia Auglorum damnosa omnibus et omnino damnanda consuetudo invaluit ... Si Judaeus aut laicorum vilissimus occiditur statim supplioio mortis ocoisor addicitur. Si quis vero sacer- dotem sive clericum minoris aut maioris status occiderit, sola excommunicatione contenta, ant (ut verius loquar) contempta, ecclesia materialis opem gladii non requirit.' This, the archbishop argues, is directly contrary to many canons. He adds : ' Neo dicatur quod aliquis bis puniatur propter hoc in idipsum, nee enim iteratum est quod ab uno incipitur et ab altero consummatur.' A neater reply to Becket's talk of double punishment could not be given. ' Diceto, i. 410 : ' Concedo etiam quod interfectorea olerioorum, qui eos scienter vel praemeditati interfeceriut, couvicti vel oonfessi coram iustitiario meo, praesente episcopo vel eius officiali, praeter consuetam laicorum vindictam, Buam et suorum de hereditate quae eos contingit perpetuam sustineant ex- heredationem. ' This seems to show that so late as 1176 the ordinary sentence on a manslayer did not always involve disherison. CH. II. § 6. J Aliens. 441 § 6. Aliens. When our commoa law issues from the middle ages both its The tests of nationality and its treatment of aliens are hardly such common as we might have expected them to be. ^^■ 1. As regards the definition of the two great classes of Who are ... . aliens? men which have to be distinguished from each other, the main rule is very simple. The place of birth is all-important. A child born within any territory that is subject to the king of England is a natural-born subject of the king of England, and is no alien in England. On the other hand, with some excep- tions, every child born elsewhere is an alien, no matter the nationality of its parents. The full extent of the first half of this rule was settled in 1608 by the famous decision in Calvin's case : — a child bom in Scotland after the moment when King James the Sixth became King James the First is no alien in England'. The decision was one which pleased the king and displeased many of his subjects ; but no other judgment could have been given, unless many precedents derived from times when our kings had large territories on the continent of Europe had been disregarded. The other half of the rule takes us back to the middle of the fourteenth century. In 1343 a great debate has sprung up among men of the law and others as to the national character of the children born to English parents in foreign parts. The king seems to fear that this may touch even the succession to the throne ; the prelates and barons reassure him ; there never has been any doubt that the king's children wherever born are capable of inheriting from their ancestors. But as regards other children they hesitate. It is agreed in parliament that children ' born in the king's service,' no matter the place of their birth, can inherit; but time is short, this difficult matter requires further discussion, and so it is also agreed that no statute shall be made upon the present occasion I Then in 1350 the debate is resumed. Once more there is a solemn protest that as to the king's children there is not and has never been any doubt at all. For the rest, it is ordained by statute ' Calvin's case, 7 Eep. 1. ' EoUa of Parliament, ii. 139. 442 The Sorts and Conditions of Men. [bk. ii. that 'children born without the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the king of England, shall have and enjoy the same benefits and advantages to have and bear inheritance within the same ligeance as [certain children in whose favour this rule was being retrospectively applied], so always that the mothers of such children do pass the sea by the licence and wills of their husbands'.' Certain children already born, were then declared capable of inheriting. The infer- ence that we should draw from the proceedings of 1343 and 1350 is that the parliament thought that it was defining a somewhat debatable point in the common law, not that it was introducing a new rule. There is very little in the earlier Year Books that bears on this point, just enough, it may be, to suggest that the usual forms of pleading threw difficulties in the way of any one born ' out of the king's ligeance,' and that ' the king's ligeance ' was regarded as a geographical tract'. Disabilities 2. An alien can not hold land in England. If the person alien? *° whom land would descend according to the common rules of inheritance, be an alien, it misses him and passes to some remoter kinsman of the dead man. If, on the other hand, an alien obtains land by gift, sale, lease or the like, the transaction is not a nullity, but the king can seize the land and keep it for himself. Late in the middle ages we hear of a narrow excep- tion : — an alien merchant may hire a house for the purposes of his trade'- Also it is said that an alien may have goods and chattels; he may make a will of them and should he die intestate they will be administered for the benefit of his kinsfolk. But it is very noticeable that according to Littleton an alien can bring no action whether real or personal, and when his great commentator explains this to mean that no alien can bring a real action, that no alien enemy can bring a personal action, but that an alien whose sovereign is in league with our own may bring personal actions, we can not but feel that this is a bold treatment of a carefully worded text^ 1 Bolls of Parliament, ii. 231 ; Statute 25 Edw. III. de naUs ultra mare. ^ Fitz. Abr. Aiell. pi. 8 (5 Edw. n.) ; Y. B. 6 Edw. ID. f. 22 (Pasoh. pi. 47) ; Y. B. 8 Edw. III. f. 51 (Trin. pi. 38); Fitz. Abr. Briefe, pi. 677 (Mich. 13 Edw. m.) ; compare Y. B. (ed. Pike), Mich. 13 Edw. III. pp. 76-8. ' So far as we are aware this appears first in Y. B. 32 Hen. VI. f. 23 (Hil. pi. 5). For the extent of the exception in Coke's day see Co. Lit. 2 b. * Lit. sec. 198; Co. Lit. 129 b. CH. II. § 6.] Aliens. 443 3. Nothing short of a statute can give to an alien all the Naturaiiza- rights of a natural born subject ; but some of these can be conferred by the king's letters patent making the alien a 'denizen.' A denizen thus made can hold land, and he can acquire land by gift, sale or the like, but he can not inherit, and a child of his born before the act of denization can not inherit from him'. Now there is room for serious doubt whether these rules Law of can be traced far beyond the end of the thirteenth century, times. Of course very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth ; it will be tribal rather than territorial law. At a later time the friendly stranger will have no strict legal rights, no rights given him by the folk-law, but will live under the protection, the mund, of the ruler or some other great man. There is much in the treatment received by Jews and foreign merchants in the thirteenth century which suggests this doctrine. But feudalism is opposed to tribalism and even to nationalism ; one becomes a lord's subject by doing homage to him, and this done, the nationality of one's ancestors and the place of one's birth are insignificant. The law of feudal contract attempts for a while to swallow up all other law. In England however a yet mightier force than that of feudalism came into play. A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands. For a long time after this there could be little law against aliens, there could hardly be such a thing as English nationality. Even had the king claimed a right to seize the lands of aliens, he would not have exercised it. Again the territory, within which, according to later law, subjects would be born to the king of England, was large; under Henry II. it became vast. It comprehended Ireland, at times (to say the least) it comprehended Scotland, it stretched to the Pyrenees. Then again the law even of Bracton's day acknowledged that a man might be a subject of the French king and hold land in France and yet be a subject of the English king and hold land in England. It was prepared to meet the case of a war between the two kings: the amphibious baron must fight in person for his liege lord, but he must also send 1 Co. Lit. 8 a, 129 a. 444 The Sorts and Conditions of Men. [bk. ii. his due contingent of knights to the opposite army^. In generation after generation a Robert Bruce holds land on both sides of the Scottish border ; no one cares to remember on which side of it he was bom". Simon de Montfort obtained the Leicester inheritance; where he was born historians can not tell us ; it matters not. He obtained the Leicester inher^ itance though his elder brother Almaric was living. Almaric was adhering to the French king, the enemy of our king, and that might be a good reason for passing him by ; but Almaric must solemnly resign his claim before Simon's can be enter- tained'. Growth of It is, we believe, in the loss of Normandy that our law of disabling aliens finds its starting point. In the first place, John seized aliens. ^j^^ lands of those of his nobles who adhered to Philip, those who preferred to be Frenchmen rather than Englishmen. This was a forfeiture for treason. At the same time we see traces of that curious dislike of perpetual disherison which meets us in many other quarters. Some of these lands, the terrae Normannorwm, are given to new tenants and their heirs, but subject to a proviso that they may be taken away again if ever the Normans come back to their allegiance*. In the second place, a permanent relation of warfare is established between England and France. It endures from the beginning of John's reign until 1259 when Henry resigned his claim to Normandy. True that during this long half-century there is very little fighting and there are many truces ; but all along the English theory is that Henry is by right Duke of Normandy and Count of Anjou, that the king of France is deforcing him of his inheritance, and that the day must come when the rebellious, or the invaded, provinces will obey their lawful lord. Thus a man who is living in obedience to the king of France is an enemy. If, says Bracton, such a one claims land against you, you may except against him ; your exception however is not a ' peremptory,' it is but a ' dilatory ' one ; it m£!,y lose its 1 Bracton, f. 427 b. He mentions as examples the Earl Marshal and M [Ingeram?] de Fiennes. '^ Maokay, Lives of the Bruoes in Diet. Nat. Biogr. 3 Annals of Tewkesbury, 111 j Mat. Par. Chron. Maj. iii. 524. * Note Book, pi. 760. The king gave part of the lands of Balph of Tanker- ville to Basset and his heirs ' doneo earn reddiderit heredibus praedicti Badulfi per voluntatem suam vel per pacem.' There are many other examples. CH. II. § 6.J Aliens. 445 force when our king enjoys his own again'. What he says is fully borne out by recorded eases from the early years of Henry III. A claimant of land is met, not by the simple ' You are an alien,' but by the far more elaborate ' You are within the power of the king of France and resident in France, and it has been provided by the council of our lord the king that no subject of the king of France is to be answered in England until Englishmen are answered in France''.' Then Matthew Paris tells us how in 1244 Saint Louis urging that 'no man may serve two masters' insisted that all persons living in France must make a definite choice between him and Henry, how Henry retorted by seizing the English lands of the Frenchmen, especially of the Normans, without giving them any chance of choosing an English nationality, how Louis treated this retort as a breach of truce ^ Blackstone is at no loss for reasons why an alien should not The king hold land in England, but when he has to explain why the aSen. * king should seize the land which aliens acquire, we feel that he is in difficulties. He suggests that this forfeiture ' is intended by way of punishment for the alien's presumption in attempting to acquire any landed property*.' The truth seems to be that in the course of the thirteenth century our kings acquired a habit of seizing the lands of Normans and other Frenchmen. The Normans are traitors; the Frenchmen are enemies. All this will be otherwise if a permanent peace is ever established. But that permanent peace never comes, and it is always difficult to obtain a restoration of lands which the king has seized. France is the one foreign country that has to be considered in this context ; Germans and Italians come here as merchants but they have no ancestral claims to urge and do not want English lands, while as to Scotland, owing to the English king's claim to an overlordship or to some other reason, Balliols and Bruces hold land on both sides of the border until a long war breaks out between the two countries. To us it seems that the king's claim to seize the lands of aliens is an 1 Braoton, f. 298, 415 b, 427 b, 428 b. He is not quite certain what will happen if ever there be peace. Hia phrase ' donee terrae f uerint communes ' seems to mean, not so much ' when there is peace between England and France,' as ' when Normandy, Anjou, etc. are once more under the ruler whom England obeys.' 2 Note Book, pi. 110, 1396. 3 Mat. Par. iv. 288. ■* Comment, i. 372. 446 The Sorts and Conditions of Men. [bk. ii. exaggerated generalization of his claim to seize the lands of his French enemies. Such an exaggerated generalization of a royal right will not seem strange to those who have studied the growth of the king's prerogatives'. And so too Bracton's ' dilatory exception ' becomes a per- emptory exception : ' You are an alien and your king is at war with our king ' becomes ' You are an alien.' An English nation is gradually forming itself; already there is a cry of 'England for the English ; ' the king's foreign favourites are detested ; glad enough would Englishmen be if he would but seize their lands impartially and indiscriminately, and never endow another alien, be he Norman or Poitevin or Savoyard with another inch of land. A trace of this feeling we may see when Bracton says that while the state of war endures the king cannot enable the alien to bring an action". Probably in Edward I.'s day the law is, not merely that an alien enemy can not sue, but that an alien can not acquire land. A curious story comes to us which is worthy of repetition. A tenant in chief of the crown died leaving two co-heiresses; King Henry granted the wardship and marriage of these two young ladies to Elyas de Rabayn; Elyas took one of them to wife and sent the other to be married beyond the seas so that he might obtain the whole inheritance. Tn 1290 her son, though born abroad, claimed his mother's share; and claimed it successfully. The court defeated the scheme of the fraudulent guardian, but declared that its judg- ment was to form no precedent in favour of other aliens'. From Edward's day also we have letters of denization or of naturalization — for the two would hardly'as yet be distinguished. Though Elyas Daubeny was born beyond the seas, the king holds him for a pure Englishman and wills that he shall be 1 See the apocryphal statute, Praerogativa Eegis, c. 14 (Statutes, i. p. 226). Here we seem to see the king's claim growing. First we have an assertion of his right to the lands of the Normans, then we are told that this extends also to lands of certain persons born beyond the sea, and we have various readings of the clause which defines this class of persons. One version says ' those whose ancestors were in the faith of the King of France in the reign of King John.' Another 'those who were not in the king's faith.' In this context 'foreigner' and 'subject of the King of France' are for practical purposes synonymous terms. In France also the droit d'aubaine does but slowly attain its full stature; Viollet, Histoire du droit civil, p. 365. 2 Bracton, f. 427 b. ' Bolls of Parliament, i. 44. CH. II. § 6.] Aliens. 447 held as such by all men and that he may sue in all courts notwithstanding any ' exception ' of alienage^. The law of Henry III.'s reign has to deal as a matter of fact The kinds with two and only two great classes of aliens. The first consists of Frenchmen who have claims to English lands ; such claims are ia some cases ancestral claims, and these, as we have seen, can not be heard while there is war or an abiding cause for war between France and England; in other cases the claimants are recipients of royal favours, they are the king's half-brothers, the queen's uncles or the attendants of these exalted persons ; the king gives them lands and, except at a revolutionary moment, they hold their lands safely; some of them were bom in provinces which de iure (so Englishmen think) belong to the king ; all of them by doing homage to the king become his men and this must be naturalization enough. The other great class consists of alien merchants ; they do not come here to settle ; they do not want land ; they would be well content were they permitted to lodge where they pleased. Mere common law has little to do with these foreign The alien merchants. Their business takes them into the chartered towns. The law under which they live is a mesh of privileges and of privileges that are hardly consistent. They themselves will have privileges derived from the king, but they will be living in boroughs which have privileges derived from the king, and first and foremost among the rights for which the burghers long is the right of confining the activity of foreign merchants within very narrow bounds. The conflict goes on with var3dng fortunes from century to century. On the whole the king, the prelates and barons support the merchants; they are useful, they lend money, they lower prices, they will pay for favours ; but often a weak king must give way and jdeld to the complaints of the burghers. Already the Great Charter pro- vides that merchants may freely enter and dwell in and leave the realm ; but the same Great Charter confirms all the ancient liberties and customs of London and the other boroughs, and 1 Bolls of Parliament, i. 135 : ' Dominns Kex ipsum Elyam Anglieum purum tenet.' Coke, Co. Lit. 129 a, cites these letters as though they effected but a limited denization. ' The king may make a particular denization, quod in quibuidam curiis suis Angliae audiatur.' For quibusdam read quibuscwmque. No one will now-a-days be misled by Coke's derivation of denizen from 'donaison i.e. donatio.' The word originally means one who is within, de intus, deinz, dans, as opposed to one who is an outsider. 448 The Sorts and Conditions of Men. [bk. ii. thus takes away with one hand what it gives with the other^ The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walls for more than forty days, if he hires a house, if he fails to take up his abode with some responsible burgher, if he sells in secret, if he sells to foreigners, if he sells in detail. In Henry III.'s day the struggle is but beginning. It reaches the first of its many climaxes in 1303 when Edward I. grants the great Carta Mercatoria^ It will interest rather the economist than the lawyer, and rather the student of the fourteenth and fifteenth centuries than the student of earlier times'. The alien s^q jjjj^y perhaps regard Coke's doctrine that the alien common friend is protected by 'personal actions' as ancient common law. In Edward I.'s day we even find that an Italian merchant resident in England, who as a Ghibelline had been ejected from his house in Florence by victorious Guelfs, hoped to recover damages for this wrong in the courts of the king of England ; he failed, because ' it is not the custom of England that any one should answer in England for a trespass committed in a foreign country in time of war or in any other manner*.' The Carta Mercatoria of Edward I., the validity of which however did not pass unquestioned, and statutes of Edward III. secured to aliens the benefit of a jury composed wholly or in part of aliens''. In 1454 it is said that a foreign merchant may hire a house and defend his possession of it by an action of trespass". If we suppose this to have been ancient common law, still it must have been law which had but little chance of asserting itself; the burghers have steadily fought against it in genera- tion after generation and very commonly have been successful'. Littleton's bold assertion that an alien can bring no action real or personal may be less open to exception than his commentator supposed °, for in Littleton's day we hear the doctrine that the 1 Charter of 1215, o. 13, 41. ^ Muuimenta Gildhallae, yol. i. pt. ii. pp. 205-8. ^ The story is told at length by Schanz, Englische Handelspolitik, i. 379-433. * Plac. Abbrev. p. 201. " Carta Mercatoria, c. 3 ; Stat. 27 Edw. III. stat. 2. c. 8 ; 28 Edw. c. 18. « Y. B. 32 Hen. VI. f. 23 (Hil. pi. 5). ' Indeed they had lately obtained two statutes declaring that alien merchants must dwell with English hosts and not elsewhere ; 5 Hen. IV. o. 9 ; 4 Hen. V. c. 5. 8 See above, p. 442. CH. II. § 6.] Aliens. 449 proper court for aliens who have come here under the king's safe conduct is the Court of Chancery ; ' they are not bound to sue according to the law of the land, nor to abide the trial by twelve men and other solemnities of the law of the land, but shall sue in the Chancery and the matter shall be determined by the law of nature'.' This of course is a doctrine character- istic of the fifteenth century. But all along it is as men privileged by the king rather than as men subject to ordinary law that the foreign merchants get a hearing. They can but seldom make their way to the king's justices because the courts of the towns in which they live claim an exclusive cognizance of actions brought against the burgesses, and when they do get to the royal courts there is a contest between privilege and privilege. Probably the king can banish them at any time; his loyal subjects in the boroughs would not be sorry if he did so, for these foreigners are always taking the bread out of the mouths of honest folk. Then, at least in the thirteenth century, the common belief is that they are all usurers and therefore living in mortal sin. We are told that in 1240 Henry III. banished the so-called Caursini ; but that they only lay hid for a time, the king conniving at their presence. A little while afterwards they are acquiring splendid palaces in London ; no one dares attack them, for they call themselves the Pope's merchants ; now and again the king will imprison a few, to the delight of their Jewish rivals; but he is half-hearted. And so there is little common law for these people ^ Ought we to reckon merchants of all kinds, English and Has the foreign, as forming one of the sorts or conditions of men known ^peodSj to the law? Hardly, though as the historian of our constitution s'at"^'' has shown, they nearly become for political purposes one of the estates of the realm'. Still they do not become this. Then in 1 Y. B. 13 Edw. III. f. 9 (Pasch. pi. 5). This is the celebrated case of the carrier who ' broke bulk.' ^ Mat. Par. iv. 8 ; v. 245. See Du Cange, s.v. Caorcini. The name has been derived from Cahors in Prance, from Caorsa in Piedmont, from a Florentine family of Corsini. Paris speaks of ' Caursini praeoipue Senonenses.' Probably by Senonenses he means men of Siena, not of Sens. It seems fairly plain that already the origin of the name was unknown, and that at least in England Gaursin was equivalent to foreign usurer. Had the word borne an obvious meaning Paris would hardly have dared to perpetrate so very bad a joke as (iii. 331) ' quasi causantes, vel capientes, et ursini.' s Stubbs, Const. Hist. § 193. P. M. 29 450 Tlie Sorts and Conditions of Men. [bk. ii. private law ' merchantship/ if we may make that word, seems too indefinite and also seems to have too few legal consequences, to permit of our calling it a status. We might illustrate this from modern law. Until very lately no one but 'a trader' could be made bankrupt; still we should hardly say that in 1860 'tradership' was a status. There was, so far as we are aware, but this one rule which marked oflfthe 'trader' from the 'non-trader,' and a man became and ceased to be a trader without any solemnity by a process that we may fairly call indefinite, though a court of law might have had to decide whether at a given moment that process had been accom- plished. The law Now before the end of the thirteenth century 'the law merchant ' was already conceived as a body of rules which stood apart from the common law^ But it seems to have been rather a special law for mercantile transactions than a special law for merchants. It would we think have been found chiefly to consist of what would now be called rules of evidence, rules about the proof to be given of sales and other contracts, rules as to the legal value of the tally and the God's penny; for example the law merchant took one view of the effect of an ■earnest,' the common law another. These special mercantile rules were conceived as being specially known to merchants ; in the courts of fairs and markets the assembled merchants declare the law ; in Edward II.'s day twelve merchants are summoned from each of four cities to testify before the king's bench about a doubtful point in the ' lex mercatoria.' Also these rules are not conceived to be purely English law ; they are, we may say, a ius gentium known to merchants throughout Christendom, and could we now recover them we might find some which had their origin on the coasts of the Mediterranean. But this is not the place for their discussion, for we take the law merchant to be not so much the law for a class of men as the law for a class of transactions. 1 Select Pleas In Manorial Courts (Seld. Soc), i. 133. CH. II. § 7.] The Jews. 451 § 7. The Jews\ The Jew came to England ia the wake of the Norman General Conqueror. That no Israelites had ever dwelt in this country Jews' before the year 1066 we dare not say ; but if so, they have left ^"^^ '""' no traces of their presence that are of any importance to us^. They were brought hither from Normandy, brought hither as the king's dependants and (the word will hardly be too strong) the king's serfs. In the first half of the twelfth century their condition was thus described by the author of the Leges Edwardi in a passage which suggests that among the regalia to which the Norman barons aspired was the privilege of keeping Jews of their own: — 'It is to be known that all the Jews wheresoever they be in the realm are under the liege wardship and protection of the king; nor may any of them without the king's licence subject himself to any rich man, for the Jews and all that thej' have are the king's, and should any one detain them or their chattels, the king may demand them as his own^' This gives us one of the two main ideas that our law in later times has about the Jew : — he with all that he has belongs to the king. Bracton puts the same thought in these words : — ' The Jew can have nothing that is his own, for whatever he acquires, he acquires, not for himself, but for the king ; for the Jews live not for themselves but for others, and so they acquire not for themselves but for others^.' The other main idea is one which will not seem strange to us after what we have said of villeinage. This servility is a relative servility; in relation to all men save the king the Jew is free. He will require some special treatment, for if he is to be here at all and do any good, he must be allowed to do things that are forbidden to Christians, notably to take interest on money lent, and courts of justice must pay some regard to his religion, for 1 Three volumes of Publications of the Anglo-Jewish Historical Exhibition issuing from the office of the Jewish Chronicle (1888) contain valuable essays, documents, bibliographies, etc. We shall make our references chiefly to these. Prynne's Demurrer, Tovey's Anglia Judaica, Madox's chapter on the Exchequer of the Jews, and the plea roll printed in Cole's Documents Illustrative of English History are among the most important sources of information. See also Jacobs, The Jews of Angevin England. 2 Liebermann, Zeitschrift fiir Geschichtswissenschaft, i. 182. ' Leges Edw. Conf. c. 25. * Bracton, f. 386 b. 29—2 Jews. 452 The Sorts and Conditions of Men. [bk. ii. example, must suffer him to swear upon the pentateuch instead of the gospels ; but in general if his royal master's interests are not concerned, he is to be dealt with as though he were a Gentile. A third principle is accepted — the Jews themselves would strongly desire its acceptance — namely that when the interests of neither the king nor any other Gentile are con- cerned the Jews may arrange their own affairs and settle their own disputes in their own way and by their own Hebrew law'. The For about a century and a half they were an important 6XCll6Q 116F of the element in English history. In spite of the king's exactions and of occasional outbursts of popular fury they throve. They were wealthy; they bore an enormous weight of taxation^. We may say that at times they ' financed ' the kingdom ; there were few great nobles who had not at one time or another borrowed money from the Israelite, and paid the two pence per pound per week that was charged by way of usury. What the great folk did, the smaller folk did also. This money-lending business required some governmental regulation. In the first place, the king had a deep interest in it, for whatever was owed to a Jew was potentially owed to the king, and he would naturally desire to have ready at hand written evidence that he could use against his debtors. In the second place, this matter could hardly be left to the ordinary English tribunals. For one thing, they would do but scant justice to the Jew, and therefore but scant justice to the king, who stood behind the Jew. For another thing, it is highly probable that the Jewish ' gage ' was among Englishmen a novel and an alien institution, that it broke through the old law by giving rights in land to a creditor who did not take possession. In 1194 therefore an edict was issued about these Jewish loans'. In every town in which the Jews lived, an office, as we should say, was established for the registration of their deeds. All loans and payments of loans were to be made under the eye of certain ofiicers, some of them Christians, some of them Jews, ' The doctrine, not without supporters in England, whioh teaches that the disabilities of the Jew were due, not to the mere fact that he was a Jew, but to the fact, real or presumed, that he was a usurer and therefore living in mortal sin, seems to us groundless. Our law did not regard usury as any offence in a Jew ; on the contrary it enforced his usurious contracts for him. * Gross, Publications, i. 195. ' Hoveden, iii. 266. CH. II. § 7.] Th,e Jews. 453 and a copy or ' part ' of every deed was to be deposited in an ' ark ' or chest under official custody. A few years later a department of the royal exchequer — the exchequer of the Jews — was organized for the supervision of this business^ At its head were a few ' Justices of the Jews.' We hear for a while that some of these justices are themselves Jews, and all along Jews filled subordinate offices in the court ; and this was necessary, for many of the documents that came before it were written in the Hebrew language. This exchequer of the Jews was, like the great exchequer, both a financial bureau and a judicial tribunal. It managed all the king's transactions — and they were many — with the Jews, saw to the exaction of tallages, reliefs, escheats and forfeitures, and also acted judicially, not merely as between king and Jew, but also as between king and Gentile when, as very often happened, the king had for some cause or another ' seized into his hand ' the debts due to one of his Jews by Christian debtors. Also it heard and determined all manner of disputes between Jew and Christian. Such disputes, it is true, generally related to loans of money, but the court seems to have aimed at and acquired a competence, and an exclusive competence, in all causes whether civil or criminal in which a Jew was implicated, unless it was some merely civil cause between two Hebrews which could be left to a purely Jewish tribunal. For this reason we can read very little of the Jews in the records of any other court, and until such rolls of the Jewish exchequer as exist have been published, we shall be more ignorant than we ought to be^ The system could not work well ; it oppressed both Jew vice of the and Englishman. Despised and disliked the once chosen people to'jews. * would always have been in a society of medieval Christians ; perhaps they would have been accused of crucifying children and occasionally massacred ; but they would not have been so 1 Gross, Publications, i. 174. ' The earliest extant roll was printed in Cole's Documents; it is that for 3-4 Henry III. A list of the other rolls is given in Publications, iii. p. xiv. Occasionally cases in which Jews are concerned come onto the ordinary plea rolls and some are printed in the Placitorum Abbreviatio and in Bracton's Note Book. Eeferences to these are given in Publications, iii. 4, 24. Cases of small debts were heard by the constables of the royal castles; the court of the University of Oxford claimed pleas between Jew and scholar, and in London the civic court held plea touching land between Jew and Gentile ; but on the whole the competence of the Excheciuer seems to have been exclusive. 454 The Sorts and Conditions of Men. [bk. ii. persistently hated as they were, had they not been made the engines of royal indigence. From the middle of the thirteenth century onwards the king was compelled to rob them of their privileges, to forbid them to hold land, to forbid them even to take interests This last prohibition could not be carried into effect ; there was little or nothing that the Jews could profit- ably do if they were cut off from lending money. Their expulsion in 1290 looks like the only possible solution of a difficult problem. A few more words may be said about their legal condition for it was curious and may serve to illustrate some general principles of our medieval law. Relation of The Jew's relation to the king is very much like the villein's the king, relation to his lord. In strictness of law whatever the Jew has belongs to the king ; he ' acquires for the king ' as the villein ' acquii-es for his lord.' But just as the lord rarely seizes his villein's chattels save for certain reasons, so the king rarely seizes the Jew's chattels save for certain reasons ; until the seizure has been made, the villein or the Jew is treated as an owner and can behave as such. Again, as the lord is wont to be content with the customary services, heriots, merchets and so forth of his villeins and to tallage them only at regular intervals, so the king, unless he be in some unusual strait, will . treat his Jews by customary rules ; for example he will not exact from the heir by way of relief more than one-third of the inheritance^. The king respects the course and practice of his Scaccarium Judaeorum, the custom of his Jewry, much as the lord respects the custom of the manor. Again, the king does justice upon and between his Jews, as the lord does justice upon and between his villeins. The maxim that what is the Jew's is the king's is not infringed when the king after a judicial hearing decides that for a certain offence a certain Jew must pay a certain sum, and just so the lord keeps in the background his right to seize all the goods of every villein while his court is condemning this or that villein to a fine, a' forfeiture or an amercement. Again, the king can grant privileges to his Jews— Henry II. gave them a charter and 1 Edict of 1271 forbidding them to hold land, Foed. i. 489 ; prohibition of usury, Statutes of the Eealm, i. 221. See also the ordinance printed by Gross in Publications, i. 219. 2 Gross, Publications, i. 192, 226. CH. II. § 7.] The Jews. 455 John a magnificent charter — without emancipating them or fundamentally changing their legal condition \ Lastly the lord when his own interests are not at stake is well content that his villeins should settle their own disputes in their own way under the supervision of his steward, and so the king is content that, as between Jews, Jewish law shall be administered by Jewish judges. The analogy may not be perfect. It is but too possible that in his dealings with his Jews the king's rapacity was checked by few considerations that were not prudential, and that the course and practice of his Jewry extracted from them the utmost that a far-sighted selfishness could allow itself to demand. The villein was a Christian ; the custom of the manor had ancient roots and was very closely akin to the common law. The relation between king and Jew was new, at least in England, and it was in many respects unique ; the Jew belonged to a despicable race and professed a detestable creed. For all this, the analogy holds good at the most important point : the Jew though he is the king's serf, is a free man in relation to all other persons. We call him a serf. We have no direct authority for so doing, for we have seen no text in which he is called servus ; but Bracton has gone very near this word when he said that what the Jew acquires he acquires for the king. Not only can the king mortgage or lease his Jewry, his Judaismum, as a whole^ but there is one known case in which an individual Jew was first given by the king to his son and afterwards enfranchised; donavimus Ubertati was the phrase used ; hereafter in consider- ation of an honorary rent of a pair of gilt spurs he is to be free from all tallages, aids, loans and demands". The Jew's perfect freedom in relation to all others than his Tlie Jew master seems to have been amply protected by the exchequer, to the So far as we can see he found there a favourable audience. He Jrge. * could sue and be sued, accuse and be accused and the rules of 1 Eot. Cart. Job. p. 93. The charter of Henry II. seems to be lost. For a charter granted by Bichard,. see Foedera, i. 51. 2 In 1255 Henry HI. mortgaged his Jewry to his brother Eichard : Tovey, p. 135; Mat. Par. Chron. Maj. v. 488. Afterwards Henry assigned it to his son Edward, who assigned it for two years to two Caursin merchants : Tovey, pp. 157-9. ^ Tovey, p. 185 (54 Hen. III.)i^ In France the Jew seems to have been distinctly called servus; Viollet, Histoire du droit civil, p. 356; Luchaire, Manuel des institutions, p. 582. 456 The Sorts and Conditions of Men. [bk. ii. procedure, which in the main were the ordinary English rules, were not unduly favourable to his Christian adversary. He ' made his law ' upon the books of Moses ; he was not required to do battle, he might put himself upon a jury one half of which would consist of men of his own race and creed. He enjoyed a splendid monopoly; he might frankly and openly bargain for interest on his loans and charge about forty-three per cent, per annum\ Unless we are mistaken no law pre- vented him from holding lands °, though it is not until late in the day that he appears as a landholder on a large scale, and when this happens it is a scandal that cries aloud for removal. He had a house, sometimes a fine house, in the town. His choice of a dwelling place seems to have been confined to those towns which had 'arks,' or as we might say 'loan registries'; he would hardly have wished to live elsewhere ; but there were boroughs which had obtained royal charters enabling them to exclude him'. Many lands were gaged to him, but though we must confess that we do not fully understand the nature of these gages, it seems to us that the Hebrew creditor seldom took, or at all events kept, possession of the land, and that his gage was not conceived as giving him any place in the scale of lords and tenants. However, late in Henry III.'s reign it became apparent that the Jews were holding lands in fee and that they had military tenants below them ; they were claiming the wardships and marriages of infant heirs, and were even daring to present Christian clerks to Christian bishops for induction into Christian churches*. This was not to be borne. In 1271 the edict went forth- that they were no longer to hold free tenement, though they might keep their own houses ^ Some galling restrictions had already been laid upon them at the instance of the church ; they were to fast in Lent ; they were to wear distinctive badges upon their garments; they were not to keep Christian servants or have intercourse with Christian women; they were not to enter the churches; they were to acquire no more schools or s)aiagogues than they already possessed. 1 Gross, Publications, i. 207. 2 Braoton, f. 13. In feoffments made by certain convents it is common to find a stipulation that the land is not to be sold or gaged to Jews. ' Gross, Publications, i. 190. • Gesta Abbatum, i. 401 ; Liber de Antiquis Legibus, 234. s Foed. i. 489. OH. II. § 7.] The Jews. 457 As between Jew and Jew, if the king's interests were in no Law be- wise concerned, Jewish tribunals administered the Jewish law and Jew. (lex Judaica). Questions of inheritance, for example, do not come before the ordinary English tribunals and come but rarely and incidentally before the exchequer of the Jews. When Hebrew dealt with Hebrew the document, the shetar (Lat. starrum, Fr. estarre) which recorded the transaction was written in the Hebrew language and the parties to it, instead of affiKing their seals (some Jews had seals), signed their names'. Often such a document was executed in the presence of official witnesses and was sanctioned by an oath upon the law. The precise nature of the tribunals which did justice between them we can not here discuss ; it is a matter for those who are learned in Hebrew antiquities ; but to all appearance they were not mere boards of arbitrators but courts with coercive power*. Whether they aspired to execute their decrees by the use of physical force we do not know; but apparently like our own ecclesiastical courts they could wield the weapon of excom- munication and this spiritual sword may have been sufficient for the accomplishment of all their purposes'. To Gentiles at all events it seemed that the Jews had ' priests ' and ' bishops ' (presbyteri, sacerdotes, episcopi) who did justice among them. Over the appointment of these officers the king exercised a control, not very unlike that which he exercised over the appointment of English bishops*. The Jews of each town, or of each synagogue, and again all the Jews of England, con- stituted a communa with which he could deal as an organized whole. He could impose a tax or a penalty upoa it, and leave it to settle as between its various members the final incidence of the impost. Whether the sojourn of the Jews in England left any Influence permanent marks upon the body of our law is a question that on English we dare not debate, though we may raise it. We can hardly '"^• 1 A collection of Shetaroth or ' stars ' has been published by M. D. Davis : Publications, vol. ii. As to the use of seals see p. 285. Tovey, p. 183, gives an engraving of a seal appended to a charter of feoffment. 2 See the volume of Shetaroth, pp. 4, 109, 136, 143, 178, 298, 336. ' Henry III. permits the 'masters of the law' to pronounce 'summam excommunioationem ' against those who will not pay their promised contri- butions to the London cemetery ; Tovey, p. 127 ; Jacobs, Publications, i. 46. ' In 1257 Henry III. deposed 'bishop' Elyas and declared that for the future the Jews might elect their own sacerdotes i Madox, Bxch. i. 261. 458 The Sorts and Conditions of Men. [bk. ii. suppose that from the Leoc Judaica, the Hebrew law which the Jews administered among themselves, anything passed into the code of the contemptuous Christian. But that the inter- national Lex Judaismi^ perished in 1290 without leaving any memorial of itself is by no means so certain. We should not be surprised to learn that the practice of preserving in the treasury one ' part ' (the pes or ' foot ') of every indenture which recorded a fine levied in the royal court, was suggested by the practice of depositing in an official ark one copy of every bond given to a Jew. Both practices can be traced to the same year, the year 1194^. Again very early in Edward I.'s day we hear that 'according to the assize and statutes of the king's Jewry, his Jews ought to have one moiety of the lands, rents and chattels of their Christian debtors until they shall have received their debts'.' A few years afterwards, and just before the banishment of the Jews, a famous statute gave a Christian creditor a very similar remedy, the well-known writ of elegit, which therefore may be a lasting monument of the Hebrew money-lender*. But at any rate we ought to remember the Jew when we make our estimate of the thirteenth century. It is when compared with its immediate successors a monied century. Landowners are borrowing large sums, and the enor- mous rate of interest that they contract to pay, if it shows the badness of the security that is offered for the loan — the Jew holds his all at the king's will and usury does not run against infants; the security therefore is very bad — shows also the intensity of the demand for money. Many an ancient tie between men, — the tie of kinship, the tie of homage — is being dissolved or transmuted by the touch of Jewish gold; land is being brought to market and feudal rights are being capital- ized. • Y. B. 32-3 Edw. I. p. 855 : ' ley de Jwerye.' 2 In our chapter on Ownership and Possession we shall trace the preser- vation of the pedes finivm to this point. 8 Madox, Exchequer, i. 247 from a roll of B-4 Edw. I.; Statutes of the Bealm, i. 221. « Stat. West. II. 13 Edw. I. o. 18. CH. II. § 8. J Outlaws and Convicted Felons. 459 § 8. Outlaws and Convicted Felons. We must now glance briefly at certain classes of men who Outlawry, for their offences or their contumacy are deprived of some of those rights which their 'lawful' neighbours enjoy. Among them we reckon outlaws, convicted felons and excommunicates. The history of outlawry can be better told in connexion with the criminal law than in the present context. Outlawry is the last weapon of ancient law and one that it must often use. As has been well said it is the sentence of death pronounced by a community which has no police constables or professional hangmen'. To pursue the outlaw, to knock him on the head as though he were a wild beast, this is the right and duty of every law-abiding man. ' Let him bear the wolf's head"/ this phrase is in use even in the thirteenth century. But as the power of the state increases, as the number of its weapons increases, outlawry loses some of its gravity; instead of being a substantive punishment, it becomes mere ' criminal process/ a means of compelling accused persons to stand their trial. Just in Bracton's day it is undergoing a further de- gradation. In one place he says that recourse can be had to outlawry only when there is an accusation of one of those crimes which are punished by loss of life or member. This no doubt is the old doctrine and his whole exposition of the effects of outlawry is in harmony with it. At a later time he has glossed his text: — there may he says be outlawry even when the offence is no felony but a mere transgressio, provided that it be a breach of the king's peace'. This is important. In course of time our law is going to know two kinds of outlawry ; with allusion to the analogous process of excommunication we might call them the greater and the less. A man outlawed on a charge of felony is as one attainted of that felony ; while if outlawed for a misdemeanour or in a civil action (for in the course of the fourteenth century the process of outlawry spreads 1 Brunner, D. E. G. i. 173. " Braoton, f. 125 b; Select Pleas of the Crown, pi. 47; Y. B. 20-1 Edw. I. p. 237. 3 Braoton, f. 127 b. The passage ' Facta autem possunt esse plura . . . ali- qnantulum cum humana ' is a marginal gloss. See Note Book, pi. 82, 85, 1263, 1267 ; Co. Lit. 128 b. 460 The Sorts and Conditions of Men. [bk. ii. rapidly through many of the personal actions) he is in no such evil plight. But this distinction belongs to the future. The learning of outlawry as it is in Bracton is still the learning of outlawry for felony. ^.°^*'°" The outlaw's life is very insecure. One may not in Bracton's outlaw. day kill him unless he is resisting capture or fleeing from it ; but it is every one's duty to capture him. And out in Gloucester- shire and Herefordshire on the Welsh march custom allows that he may be slain at any time'. If knowing his condition one harbours him, one commits a capital crimed He is a ' lawless man ' and a ' friendless man'.' Of every proprietary, possessory, contractual right he is deprived; the king is entitled to lay waste his land and it then escheats to his lord ; he forfeits his chattels to the king ; every contract, every bond of homage or fealty in which be is engaged is dissolved. If the king inlaws him he comes back into the world like a new-born babe, quasi modo genitus, capable indeed of acquiring new rights, but unable to assert any of those that he had before his outlawry. An annihilation of the outlawry would have a diflferent opera- tion, but the inlawed outlaw is not the old person restored to legal life, he is a new person^ The law of forfeiture and escheat for felony is taking an extremely severe form. It is held that the conviction or the outlawry ' relates back ' to the moment at which the crime was perpetrated, so that acts done by the felon in the interim are avoided". It is held that the felon's blood is corrupt and that a child born to him after the felony is incapable of inheriting, not merely from him, but from any one else^ Though we speak but briefly of outlawry, we 1 Braoton, f. 128 b. The printed book has Hertford instead of Hereford. The citation from the Digest should be, Dig. ad legem Gomeliam de Sioariis et Veneficis (48. 8) 3 § 6, ' Transfugas licet ubiounque inventi fuerint quasi hostes interficere.' As to killing an outlaw, see Britton, i. 51. So late as 1328 it was argued that a plea of the dead man's outlawry was a sufficient answer to an indictment for slaying him ; 2 Lib. Ass. pi. 3, f. 3 ; Y. B. 2 Edw. III. f. 6 (Hil. pi. 17) ; and it would even seem that the same assertion was made in 1353 ; 27 Lib. Ass. pi. 41, f. 137. " Bracton, f. 128 b. ' Bracton, f. 125, 128 b. ■* Bracton, f. 132 b. ' Bracton, f. 30 b, citing Dig. de donationibus (39, 5) 15 : ' Post contraotum capitale crimen donationes faotae non valeut ex oonstitutione divorum Severi et Antonini, si condemnatio secuta sit.' See also Fleta, p. 43, " Bracton, f. IBO : ' cum sit progenitus talis ex testioulo et sanguine felonis.' Fleta, p. 43. CH. II. § 9.] Excommunicates. 461 are speaking of no rarity ; the number of men outlawed at every eyre is very large ; ten men are outlawed for one who is hanged. § 9. ExGommjunicates. Closely allied to outlawry is excommunication ; it is in fact Excommu- an ecclesiastical outlawry', and, like temporal outlawry, from having been the law's last and most terrible weapon against the obstinate offender, it has come to be regarded as a normal process for compelling the appearance in court of those who are accused. Indeed as regards the laity, since the spiritual courts can not direct a seizure of body, lands or goods, if mere citations fail to produce an appearance, those courts must at once have recourse to their last weapon. Then, as ordained by William the Conqueror, the lay power comes to their aid''. If the excommunicate does not seek absolution within forty days (this period seems to be fixed already in the twelfth century'), the ordinary will signify this to the king ; a writ for the arrest of the offender will be issued and he will be kept in prison until he makes his submission ^ The excommunicate is, says Bracton, a spiritual leper ; he can do no valid act in the law ; he can not sue ; but he can be sued, for he must not take advantage by his own wrong-doing ; one may not pray with him, talk with him, eat with him'. The clergy from time to time complain that this precept is not very well observed and that the king is backward in the arrest of excommunicates". In spite of the condemnation which had fallen on the Constitutions of Clarendon, our kings seem to have steadfastly asserted the Conqueror's principle that their tenants in chief, at all events their ministers, sheriffs and bailiffs, were not to be excommunicated without their leave. Edward I. compelled Archbishop Peckham to withdraw a general sentence pronounced against those ministers who were 1 ^thelr. viii. 42. The exoommunioate is ' God's outlaw.' 2 Schmid, Gesetze, p. 357 ; Leg. Edw. Conf. 2, § 9. 3 Leg. Edw. Conf. 6. * Bracton, f. 426 b, 427; Beg. Brev. Orig. f. 65. 5 Bracton, f. 426 b : ' Excommunicato enim interdicitur omnia actus legi- timus.' Note Book, pi. 552 ; Britton, i. 322 ; Lit. sec. 201. " Gravamina of 1257, Mat. Par. Chron. Maj. vi. 355; Constitutions of 1261, Johnson, Canons, ii. 192. 462 The Sorts and Conditions of Men. [bk. ii. remiss in their duty of capturing excommunicates^ and in 1293 the Archbishop of York made iine with four thousand marks for having excommunicated the Bishop of Durham ; he had failed to take the distinction between what was done by his suffragan bishop and what was done by a palatine earP. A practice of the lay courts yet more objectionable to the clergy was that of directing a bishop to absolve an excommunicate. They did not treat the spiritual courts as inferior courts, they did not entertain appeals or evoke causes ; but still they had to protect their own jurisdiction. A suit would be instituted in the bishop's court about some matter, which, according to the thinking of the king's justices, did not lie within its sphere ; to those justices the defendant would come for a writ of pro- hibition ; meanwhile he would be excommunicated and then the plaintiff and the ecclesiastical judges when called before the royal court would refuse to answer one who was already outside the pale of the church. In such a case it is not an unheard of thing that the lay court should command the bishop to pro- nounce an absolution'; but much the same end may be attained if the lay court simply ignores a sentence which in its opinion, has been obtained in fraud of its rights*. On the whole however before the end of Henry III.'s reign the two sets of courts are working together harmoniously. There is always a brisk border warfare simmering between them, in which, as is natural, the tribunal which has the direct command of physical force is apt to gain the victory ; but this is no longer a world- shaking conflict between church and state, it is rather a struggle between two professional classes, each of which likes power and business and has no dislike for fees and perquisites. In the eyes of the secular lawyers the baronies of the bishops are a pledge that the censures of the church will not be used so as to deprive the king of his rights^ Even an appeal to Rome 1 Johnson, Canons, ii. 258 ; Bolls of Parliament, i. 234. " Bolls of Parliament, i. 102. In 1194 Archbishop Geoffrey of York was in trouble for having contemned the king by excommunicating one of his ministers ; Eolls of the King's Court (Pipe Boll Soc.) vol. i. p. xvii. ' Note Book, pi. 670. See Ann. Burton. 255, 413 ; Mat. Par. Ohron. Maj. vi. 354 ; Articuli Cleri, c. 7 (Statutes i. 172). * Braoton, f. 408, 426 b, 427 ; Co. Lit. 134 a. " Bracton, f. 427 : ' Nunquam oapietur aliquis ad mandatum iudioum dele gatorum vel arohidiaoouorum vel alterius iudicis inferioris, quia rex in episcopis coertionem habet propter baroniam.' CH. II. § lO.J Lepers, Lunatics and Idiots. 463 is duly respected by the lay power — more than duly respected, some English churchmen must have thought, for thereby the wealthy excommunicate is often enabled to postpone to an indefinite date the evil day when he must go to prison or submit himself. We have compared excommunication to outlawry; but ofExoommu- .,. PI nication course, at least m this world, the consequences of the temporal and civil were far more severe than those of the spiritual ban. The "^ excommunicate forfeited none of those rights which were sanctioned by lay tribunals. He became incapable of asserting them by action ; but the ' exception of excommunication ' was only a dilatory, not a peremptory, plea, and the plaintiff might go on with his action so soon as he had made his peace with the church". Despite their adoption of the bold phrase ' The excommunicate can do no act in law,' our secular judges seem to have thought that they had given sufficient aid to the spiritual power when they had shut their ears to the fwnesta vox of the church's outlaw'. They stopped short of declaring that he could not acquire rights or dispose of his property, but those, who knowing of his condition had dealings with him, were guilty of an offence which the ecclesiastical courts might punish if they pleased. § 10. Lepers, Lunatics and Idiots. This would not be the place in which to speak at any The leper, length of the legal incapacity or disability of those who are suffering from mental or bodily disease ; but a few words should be said of lepers and of idiots. Bracton compares the excom- municate to the leper, and the leper is excommunicated in a very real sense. He is put outside the community of mankind ; the place for him is the lazar house^ Not only is he incapable of suing and of making gifts or contracts, but he is even incapable of inheriting. He still remains the owner of what was his before his ' segregation,' but he can not inherit ^ 1 Braoton, f. 426 b ; Beg. Brev. Orig. f. 68. 2 Braeton, f. 426 b ; Lit. sec. 201. " Bracton, f . 426 b ; ' funestam enim vooem interdici oportet.' • The Court Baron (Seld. Soo.), p. 134. « Bracton, f. 12, 421 ; Select Civil Pleas, pi. 157 ; Note Book, pi. 807, 1648. For parallel and similar French law, see VioUet, Histoire du droit civil, p. 375. 464 The Sorts and Conditions of Men. [bk. ii. The Idiot. Among the insane our law draws a marked distinction ; it separates the lunatic from the idiot or born fool'- About the latter there is a curious story to be told. In Edward I.'s day the king claims a wardship of the lands of all natural fools no matter of whom such lands may be holden. He is morally bound to maintain the idiots out of the income of their estates, but still the right is a profitable right analogous to the lord's wardship of an infant tenant. But there is reason to believe that this is a new right or that at any rate there has been a struggle for it between the lords and the king. If idiocy be treated as similar to infancy, this analogy is in favour of the lords; at all events if the idiot be a military tenant, feudal principles would give the custody of his land not to the king, but to the lord, while of socage land some kinsman of the fool might naturally claim a wardship. Edward I. was told that by the law of Scotland the lord had the wardship of an idiot's land^ But in England a different rule had been established, and this, as we think, by some statute or ordinance made in the last days of Henry III. If we have rightly read an obscure tale, Robert Walerand, a minister, justice and favourite of the king, procured this ordinance foreseeing that he must leave an idiot as his heir and desirous that his land should fall rather into the king's hand than into the hands of his lords'. The king's right is distinctly stated in the document known as Praerogativa Regis which we believe to come from the early years of Edward I. The same document seems to be the oldest The that gives us any clear information about a wardship of lunatics. The king is to provide that the lunatic and his family are properly maintained' out of the income of his estate and the residue of it is to be handed over to him upon his restoration to sanity, or, should he die without having recovered his wits, is to be administered by the ordinary for the good of his soul ; but the king is to take nothing to his own use^ Once more we see prerogatival rights growing, while feudal claims fall into the background ; and in the case of lunacy we see a guardianship, a mund, which is not profitable to the guardian, and this at present is a novel and a noteworthy thing". ' Blackstone, Comm, i. 302. 2 Parliament Boll of 33 Edw. I. (EoUs Ser.), p. 228. 3 Maitland, Praerogativa Eegia, Bng. Hist. Rev. vi. 369. " Praerogativa Regis, c. 11, 12 (Statutes, 1. 226). " See above, p. 303. CH. II. § 11. J Women. 465 § 11. Women. We have been rapidly diminishing the number of ' normal Legal persons,' of free and lawful men. We have yet to speak of^°^en"° half the inhabitants of England. No text-writer, no statute, ever makes any general statement as to the position of women'. This is treated as obvious, and we believe that it can be defined with some accuracy by one brief phrase : — private law with few exceptions puts women on a par with men ; public law gives a woman no rights and exacts from her no duties save that of paying taxes and performing such services as can be performed by deputy. A very different doctrine is suggested by one ancient rule. Women in A woman can never be outlawed, for a woman is never in law. il"^ ^ We may well suppose this to come from a very remote time. But in Bracton's time it means nothing, for a woman, though she can not be outlawed, can be ' waived,' declared a ' waif,' and 'waiver' seems to have all the effects of outlawry^ Women are now ' in ' all private law, and are the equals of men. The law of inheritance, it is true, shows a preference for males over females ; but not a very strong preference, for a daughter will exclude a brother, and the law of wardship and marriage though it makes some difference between the male and the female ward is almost equally severe for both. But the woman can hold land, even by military tenure, can own chattels, make a will, make a contract, can sue and be sued. She sues and is sued in person without the interposition of a guardian ; she can plead with her own voice if she pleases ; indeed — and this is a strong case — a married woman will sometimes appear as her husband's attorney'. A widow will often be the guardian of her own children ; a lady will often be the guardian of the children of her tenants. The other half of our proposition, that which excludes Women in public law. 1 Bracton, f. 5 : ' Bt differunt feminae a masoulis in multis, quia earum deterior est conditio quam masoulornm. ' This cornea from Azo, who gives many examples, while Bracton gives none. 2 Bracton, f . 125 b ; Britton, i. 50. This doctrine is connected with the rule that a woman can not be in frankpledge, and this probably implies or has implied that every woman is the mainpast of some man. •' Note Book, pi. 342, 1361, 1507. P. M. 30 466 The Sorts and Conditions of Men. [bk. ii. women from all public functions, was subject to few if any real exceptions. In the thirteenth century the question whether a woman could inherit the crown of England must have been extremely doubtful, for the Empress had never been queen of England. Queens-consort and queens- dowager had acted as regents during the absence of their husbands or sons and presided in court and council'. The line between office and property can not always be exactly marked ; it has been difficult to prevent the shrievalties from becoming hereditary ; if a woman may be a comitissa, why not a vice-comitissa^ "i Orna- mental offices, hereditary grand serjeanties, women are allowed to carry to their husbands and to transmit to their heirs. So also when the constitution of -the House of Lords takes shape the husbands of peeresses are summoned to sit there as ' tenants by the curtesy',' but peeresses are not summoned. 'The nearest approach to such a summons,' says Dr Stubbs, ' is that of four abbesses, who in 1306 were cited to a great council held to grant an aid on the knighting of the prince of Wales*.' In the nineteenth century our courts have more than once considered the question whether women did suit to the local moots, more especially to the county court, and have come to what we think the right conclusion^ Undoubtedly a woman might owe suit to the hundred or the county", or rather (for this we think to be the truer phrase) the land that she held might owe suit. Also it is certain that some sheriffs in the latter part of Henry III.'s reign had insisted on the personal attendance of women, not indeed at the county courts, but at those plenary meetings of the hundred courts that were known as the sheriff's turns. But it is equally certain that this exaction was ' Already in D. B. i. 238 b we read of pleas ' coram regina Mathilda.' 2 For several years under Henry III. Ela, countess of Salisbury, was sheriff of Wiltshire ; see list of sheriffs in Slst Eep. of Deputy-Keeper. But in this case there was a claim to an hereditary shrievalty ; Note Book, pi. 1235. The wife of Ranulf Glanvill, sheriff of Yorkshire, is called Berta Vicecomitissa in a charter : Eound, Geoffrey de Mandeville, 385. ' Hargrave's note to Co. Lit. 29 a. * Stubbs, Const. Hist. § 751. EoUs of Parliament, iv. 270 (a.d. 1425) : the earl of Norfolk had issue Margaret his heir, ' to whom no place in Parlement myght apperteyne, by cause she was a woman. ' 5 Chorlton v. Lings, L. E. 4 C. P. 374; Beresford-Hope v. Sandhurst, 23 Q. B. D. 79. " Eot. Hund. ii. 62 ; ' Domina J. le E. tenet W. . . . et faoit sectam ad comi- tatum et hundredum.' One example among many. CH. II. § 11.] Women. 467 regarded as an abuse and forbidden'. We can not doubt, though the evidence on this point is rather tacit than express, that women did the suit due from their land by deputy. Again, we never find women as jurors, except when, as not unfrequently happened, some expectant heir alleged that there was a plot to supplant him by the production of a supposititious child, in which case a jury of matrons was employed^. To say that women could not be jurors is in this period almost equivalent to saying that they could not be witnesses, but their names sometimes appear among the witnesses of charters'. In all actions a plaintiff had to produce a suit {secta) of persons who in theory were prepared to testify on his behalf; we can not find that he ever brought women. One of the actions in which such ' suitors ' were of importance was the action for deciding whether a person was free or villein, and here Britton expressly tells us that a woman's testimony was not received, ' for the blood of a man shall not be tried by women ' ; the word of women, we are elsewhere told, can not be admitted as proof, ' because of their frailty^.' In the ecclesiastical courts the rule seems to have been that a woman's compurgators ought to be women^ just as a man's compurgators ought to be men, but apparently in the king's court a woman had to find male • The Provisions of 1259, o. 10 (Stat. i. 9), say that the prelates, barons, earls, ' nee [al. vel] aliqui religiosi [al. ins. viri] seu mulieres ' need not attend the turn unless specially summoned. The reading of the Close differs slightly from that of the Patent EoU. The Statute of Marlborough, e. 10 (Stat. i. 22), repeats this with a small variation ; the persons who need not attend are the prelates, earls, barons, 'nee aliqui viri religiosi sen mulieres.' The question has been raised whether in this last passage mulieres is governed by religiosi. In any case we should have answered this in the negative, but a comparison of the various texts seems to make this plain ; in one version of the Provisions there is no viri. The term religiosi was often used as a substantive. The whole section has the air of dealing with a modern abuse, for the turn is to be held as in the time of the king's ancestors. The reference to a special summons means this, that the persons exempted from doing suit to the turn may none the less have to go to it for the purpose of defending actions that are pending in the hundred court, or of answering the accusations which the presenting jurors bring against them. 2 Braoton, f. 69 ; Note Book, pi. 198. ^ Cart. Eievaulx, p. 62 : five men and six women, including Eanulf Glanvill and his wife, vritness a widow's gift. " Britton, 1. 207: 'de sicum saunc de homme ne pent, ne deit, estre trye par femmes'; Fleta, 111-2; Fitz. Abr. Villenage, pi. 37 (13 Edw. I.); Nor- thumbrian Assize Bolls (Surtees Soc), p. 275. ' Bolls of Parliament, i. 146-7. 30—2 468 The Sorts and Conditions of Men. [bk. ii. oath- helpers'. In one respect a woman's capacity of suing was curtailed by her inability to fight. A rule older than, but sanctioned by, the Great Charter prevented her from bringing an appeal of felony unless the crime of which she had to complain was violence to her person or the slaughter of her husband". In these excepted cases the accused would have to submit to trial by jury; at an earlier time one or other of the parties would have been sent to the ordeal'. In the thirteenth century this limitation of the right to make criminal charges was already becoming of little importance, since the procedure by way of appeal, that is, of private accusation, was giving place to the indictment. On the whole we may say that, though it has no formulated theory about the position of women, a sure instinct has already guided the law to a general rule which will endure until our own time. As regards private rights women are on the same level as men, though postponed in the canons of inheritance; but public functions they have none. In the camp, at the council board, on the bench, in the jury box there is no place for them*. Married We have been speaking of women who are sole, who are spinsters or widows. Women who have husbands are in a different position. This however can be best discussed as part of family law, and under that title we shall also say what has to be said of infants. But here it may be well to observe that the main idea which governs the law of husband and wife is not that of a ' unity of person,' but that of the guardianship, the mund, the profitable guardianship, which the husband has over the wife and over her property. ' Note Book, pi. 7 : ' Lex de masoulis si femina defendat.' 2 Glanvill, lib. xiv. c. 1, 3. 6 ; Select Pleas of the Crown, i. pi. 32 ; Charter of 1215, c. 54 ; Braoton, f. 148. It is often said that the woman must allege that her husband was slain 'within her arms.' This seems to be but a picturesque ' common form. ' ' Glanv. xiv. 3. * In the version of Glanvill's treatise given by MS. Camb. Univ. Mm. i. 27 f. 31 b, it is remarked that women can never essoin themselves as being on the king's service, 'quia non poasunt nee debent ueo solent esse in servitio domini Eegis in exercitu neo in aliis servitiis regaUhus.' women. CH. II. § 12.] Fictitious Persons. 469 § 12. Fictitious Persons. Every system of law that has attained a certain stage in Fictitious •' •' ° _ persons. its development seems compelled by the ever-increasing complexity of human affairs to add to the number of persons provided for it by the natural world, to create persons who are not men. Or rather, to speak with less generality and more historical accuracy, a time came when every system of law in western Europe adopted and turned to its own use an idea of non-human persons, ideal subjects of rights and duties, which was gradually discovered in the Roman law-books. From the nature of the case it is not often that j urisprudence can make a discovery comparable to the discoveries made by other sciences or other arts, for it has to await rather than to forestall the slow changes of common opinion. But here there is something that we may fairly call a discovery, though it was made by no one man and by no one age : — in order that the relationships between men may be adequately and succinctly stated, we must in thought institute a new order of persons, persons who are not men. We have become so familiar with this artifice of science that we have ceased to wonder at it : — when we are told by statute that the word ' person ' is normally to include ' body politic ' ; that seems a very natural rule^ The idea of a 'corporation aggregate' a 'body politic,' has obviously been a powerful instrument in the hands of modern law. When however we attempt to analyze this idea we find that Analysis there is little to be said, for it is an elastic because it is, if we fiction, may so say, a very ' contentless ' idea, a blank form of legal thought, and its potency lies in its elasticity. Little enough in common have the divers corporations known to English law — for example, the Ecclesiastical Commissioners for England ; the Dean and Chapter pf Ely; the Chancellor, Masters and Scholars of the University of Oxford ; the Mayor, Aldermen and Burgesses of the Borough of Cambridge ; the Governor and Company of the Bank of England ; the Great Northern Railway Company; Styles, Nokes and Company (Limited). Among ' natural persons ' the law for a long time past has been able to 1 Interpretation Act 1889 (.52 & 53 Vic. u. 63) see. 2. 19. 470 The Sorts and Conditions of Men. [bk. ii. single out one class as being the normal or typical class and to treat other classes as exceptional ; thus the liber et legalis homo is the typical natural person of medieval law ; and to this we may add, that in course of time some of the exceptional classes disappear, the noble class disappears, the unfree class disappears. Far otherwise is it with the ' artificial persons ' ; we can hardly call one corporation more normal than another aiid modern legislation is constantly supplying us with new kinds. Thus we are not likely to find the essence of a corporation in any one rule of law. If, for example, an English lawyer would make all -fcUrn on the use of a common seal he would be setting up a merely English rule as a necessary maxim of jurispru- dence ; nor only so, for he would be ■ begging an important question about the early history of corporations in England. Some again may feel inclined to say that a corporation must have its origin in a special act of the State, for example, in England a royal charter ; but they again will be in danger of begging a question about ancient history, while they will have the utmost difficulty in squaring their opinion with the modern history of joint-stock companies. Modern legislation enables a small group of private men to engender a corporation by registration, and to urge that this is the effect of ' statute ' and not of ' common law ' is to insist upon a distinction which we hardly dare carry beyond the four seas^- Or, to come to a more vital point, shall we demand that an individual corporator shall not be held liable for the debts of the corporation ? ' Si quid universitati debetur singulis non debetur ; nee quod debet universitas singuli debent^' — is not this the very core of the matter ? Once more modern legislation bids us pause : — there is no reason whatever why a statute should not say that a judgment obtained against a corporation can be enforced against the lands and goods, all the lands and all the goods, of every single corporator, and this although the corporation still exists: — in ordering that this be so, the legislature does not contradict itself. Nor again is it only from modern statute law that we receive this warning; our ancient common law gives ' Gierke, Genossensohaftstheorie, ch. 1. 2 Dig. 3. 4, 7. 3 In the first half of this century our parliament tried many experiments of thia kind. See for example the Act for the Eegistration of Joint-Stook Companies, 7 & 8 Vie. c. 110, sec. 25, 66. CH. II. § 12.] Fictitious Persons. 471 us the same warniag in unmistakeable terms. If we insist that common law can not hold the singuli liable for the debt of the universitas, we shall find little or nothing to say about corpora- tions in any century earlier than the fifteenth. Hitherto the lesson that we have been taking to ourselves is that we are not to deny the presence of the idea of a corporation merely because it is not producing all of what we consider its natural effects. The warning is equally necessary that in remote times we may somewhat easily discover corpora- ■tions that never existed. Modern experience, the history of the earlier part of the nineteenth century, proves that large commercial enterprises may be conducted and much done in the way of subordinate government by aggregates of men that are not incorporated. The law of tenancy in common and joint tenancy, the law of partnership, these have been found equal to many heavy and novel demands. And when we turn to a far-off past we may be in great danger of seeing too readily a corporation in some group of landholders, which, if modern distinctions are to be applied at all, would be better classed as a group of joint tenants than as a corporation. Thus we have before us the history, not of a rule of law, but The of a form of thought, a form of which we can say little more morphic than this, that it introduces into the legal world persons who cirpOTa" ' are not men. Still we can make this form of thought the ''""• clearer by contrasting it with a mental picture with which it has been very closely connected, we mean the anthropomorphic picture of an aggregate of men. The comparison of an organized group of men to a man is very old. To say nothing of the classical literature of Greece and Rome, it was in the middle ages familiar to all who read the epistles of St PauU. Many men may form one body, they are the members of that body. The portrait of a corpus morale et politicum had been drawn by John of Salisbury and others long before the days of Hobbes^ Much of the language used alike by lawyers and laymen at the' present day implies this picture. An aggregate of men is 'incorporated,' is a 'body,' a 'corporation'; they are the ^ Paulus ad Corinthios, 1, xii. 12 : ' Siout enim corpus unum est et membra habet multa, omnia autem membra corporis, cum sint multa, unum tamen corpus sunt ; ita et Christus Vos autem estis corpus Christi et membra de membro.' ^ Gierke, Genossenachaftsrecht, iii. 549. 472 The Sorts and Conditions of Men. [bk. li. 'members' of that body; the corporation is made up of members. The monster that faces us on the title page of the 'Leviathan' is a corporation aggregate, a body made up of bodies. Our every-day language and our technical language encourage us to think in this way ; but the way leads to conclusions that we reject. A body is at least the sum of its members. Let us admit that it is more than this, that it is an organized aggregate, still it is at least an aggregate. Does it not follow that what the whole body does is done by all its members ; that if the whole does wrong all the members do wrong ; that if the whole owes money all the members owe money? We reject these inferences. When it comes to precise legal thinking we rise above our anthropomorphism. We hold that the 'juristic person ' is not in the least like a body with members, is not in any accurate sense made up of natural persons. What we personify is not the associated group of men but the purpose for which they are associated. Indeed, as is well known, there may be no association in the case and yet the artificial person will be present. If our law knows the ' corporation aggregate', it also knows the 'corporation sole,' and both are known to other modern systems, though perhaps not under just these names. An ofiSce is personified ; ' the crown,' ' the fisc,' the bishop's see, or, it may be, the office of solicitor to the Treasury^ becomes a person. An endeavour to picture many men as together forming but one person may be a necessary stage in the evolution of the law ; and in one particular it was better suited to the middle ages than to the present time, for while a man may now-a-days be a member of a countless number of corporations, the monk could belong to but one convent, and seldom, if ever, in the old days was a man a burgess of more than one borough. But even if membership of one body politic be incondpatible with membership of another, still a serious effort to treat many men as united in one person, an effort to make the anthropomorphic picture of the associated group a basis for legal argument, is doomed to failure. But further, we must not lightly admit that even this endeavour is being made by our remote ancestors. There is no fiction at work at all until men are ready to distinguish between what belongs to or is done by the corporation and what belongs to or is done by the sum of the corporators. When five or a hundred men are 1 Stat. 39 & 40 Vic. o. 18. CH. II, § 12.J Fictitious Persons. 473 saying, ' This land belongs to us, it belongs to us when we are taken all together ' we must not at once attribute to them even a first glimmering notion of a corporation aggregate. That they have not got until they are prepared to qualify by a negative this affirmative proposition, until they are prepared to say, ' It belongs to us, but it does not belong to us as a collection of individuals.' Until this negative half of the doctrine is being grasped there is nothing that we shall dare to call a corporation. Now if for a moment we take our stand in Edward IV.'s The cor- reign, when the middle ages are rapidly nearing their end, we the end of can say that the idea of a corporation is already in the minds of ' ^g™ ® our common lawyers ; it may trouble them, — this is shown by their frequent discussions about its nature — but still it is there\ First we notice that they already have a term for it, namely, corporacion, for which corps corporat and corps politik are equivalents. Then under this term several entities which have little in common have been brought, in particular, abbot and convent, dean and chapter, mayor and commonalty. With such 'incorporated bodies' they contrast aggregates of men that are not incorporated, townships, parishes, gilds^. They demand that incorporatedness shall have some definite and authoritative commencement; the corporation does not grow by nature, it must be made, by the act of parliament, or of the king, or of the pope', though prescription may be equivalent to royal charter. The rule that the corporation can do no act save by a writing under its common seal they enforce with severity ; it is an anomaly, a concession to practical necessities, that the commands of the corporation about petty affairs can come to its servants through less formal channels*. The corporation is invisible, incorporeal, immortal; it can not be assaulted, or beaten or imprisoned ; it can not commit treason ; 1 See the Year Books of Edward IV. in general, but especially the great case Abbot of St. Benet's (Hulme) v. Mayor and Commonalty of Norwich, four times reported, Y. B. 21 Edw. IV. f. 7, 12, 27, 67. 2 y. B. 20 Edw. IV. f. 2 (Pasoh. pi. 7) : an unincorporated gild or fraternity; 12 Hen. VII. f. 27 (Trin. pi. 7) : ' feffement fuit fait al oeps de paroissiens que n'est nule coi-poracion.' 3 Y. B. 14 Hen. VIII. f. 3 (Mich. pi. 2); dean and chapter, mayor and j commonalty are incorporated by the king ; the mendicant friars by the pope ; abbot and convent by both king and pope. ■* Y. B. 4 Hen. VII. f. 6 (Pasoh. pi. 2); 4 Hen. VII. f. 17 (Mich. pi. 7); 7 Hen. VII. f. 9 (Hil. pi. 2) j 7 Hen. VII. f. 16 (Trin. pi. 3). 474 Tlie Sorts and Conditions of Men. [bk. ii. a doubt has occurred as to whether it can commit a trespass^ but this doubt (though it will give trouble so late as the year 1842") has beea rejected by practice, if not removed by any consistent theory'. We even find it said that th^ corporation is but a name*. On the other hand it is a person^ It is at once a person and yet but a name ; in short, it is persona ficta. The cor- The main difficulty that the lawyers have in manipulating and its this idea is occasioned by the fact that almost every corporation Ajitiuopo- ^^ ^ ' head,' which head is separately and expressly designated inorphism. ][jy tjjg formal title of the juristic person. It is now regarded as an anomaly that at Ripon there should be a corporation of. canons without a head"; normally there is a head; the ideal person is not the Convent- of St Albans, the Chapter of Lincoln, the Commonalty of Norwich, but the Abbot and Convent of St Albans, the Dean and Chapter of Lincoln, the Mayor, Sheriffs and Commonalty of Norwich. This keeps alive the anthropomorphic idea. In 1481 a puzzling question arose as to whether when a dean and chapter brought an action, a juror might be challenged on the ground that he was brother to one of the canons. An advocate who urges that the juror is 'a stranger to the chapter, for it is a body of siich a nature that it can have neither brother nor cousin,' none the less concedes that perad venture it might have been otherwise had the juror been brother to the dean'. Elsewhere the relation between dean and chapter is compared to that between husband and wife ; ' the chapter is covert by the dean as the wife is coverte by her husband^' From the same year, 1481, we get one of ' Lib. Ass. ann. 22, f. 100, pi. 67. ^ Maund v. Monmouthshire Canal Company, i Manning and Granger's Beports, 452. » Abp. of York v. Mayor etc. of Hull, Y. B. 45 Edw. III. f. 2 (Hil. pi. 5) ; Y. B. 8 Hen. VI. f. 1 (Mieh. pi. 2); Y. B. 18 Hen. VI. f. 11 (Trin. pi. 1) ; Y. B. 32 Hen. VI. f. 8 (Mieh. pi. 13). * Y. B. 21 Edw. IV. f. 13 (Mich. pi. 4) : ' le oorporaoion de eux n'est que un nosme, que ne poit my estre vieu, et n'est my substance, e a ceo nosme ou corps est impossible de faire un tort.' 5 Y. B. 32 Hen. VI. f. 9 (Mich. pi. 13) : 'ils sent per eest nosme un person corporate ' ; Y. B. 21 Edw. IV. f. 32 (Pasch. pi. 28) per Catesby. 6 Y. B. 18 Hen. VI. f. 16 (Trin. pi. 4); Y. B. 21 Edw. IV. f. 28 (Pasch. pi. 22). Compare what is said of the Canons of Southwell in Sutton's Hospital- Case, 10 Coke's Beports, 30 b. ' Y. B. 21 Edw. IV. f. 31 (Pasch. pL 28), f. 63 (Mich. pi. 33). 8 Y. B 2 Hen. VI. f. 9 (Pasch. pi. 6) per Bolf. OH. II. § 12.J Fictitious Persons. 475 the most interesting cases in all the Year Books' : — The Abbot of Huhne sued the Mayor, Sheriffs and Commonalty of Norwich on a bond, and they pleaded that when the bond was made the then abbot had got the then mayor in prison and extorted the bond by duress. The lawyers very generally admit that the coi-poration itself can not be in prison or suffer duress, and that ' it would be no defence to urge that when the bond was made some few of the citizens of Norwich were (as they generally would be) in prison. But then in this case ' the head ' of the corporation was in prison. ' I tell you, Sir,' says counsel for the city", ' that every body politic is made up of natural men. And as regards what has been said touching its inseverability, I do not admit that ; for they allow that mayor, sheriffs and com- monalty make up a single body ; here then are members, namely, the mayor is one member. . .the sheriffs another mem- ber... the third is the commonalty.... In this case there is an alleged imprisonment of one of the distinct members named in the title of the corporation, to wit, the mayor, who is the head and (as in a body natural) the principal member... and if one member of the body natural be restrained or beaten, that is a restraint or battery of the whole body.' This idea that a corporation consists of head and members, that every act of the corporation requires the assent of its head, that if for a while it has no head it is capable of no act save that of electing a new head, has given trouble in more recent times and is perhaps capable of giving trouble even at the present day' ; it is a relic of what we have called anthropomorphism. In Edward IV.'s day we are told^ that the Mayor and Commonalty of Newcastle gave a bond to the person who happened to be mayor, naming him by his personal name. It was held void, for a man can not be bound to himself. So long as such a decision for such a reason is possible, the modem idea of a corporation is not secure ; at any rate it is hampered by an inconsistent and older idea. Still in the Year Books of Edward IV. that idea is 1 y. B. 21 Edw. IV. f. 7, 12, 27, 67. = Y. B. 21 Edw. IV. f. 69. ' See Grant on Corporations, p. 110, where it is said that ' if the master of a college devise lands to the college, they cannot take, because at the moment of his death they are an incomplete body.' But in 1333 an abbot was success- fully sued upon a bond given by prior and convent during a vacancy: Y. B. 7 Edw. III. f. 35 (Trin. pi. 35). " y. B. 21 Edw. IV. f. 15, f. 68, per Vivisour. 4/6 The Sorts and Conditions of Men. [bk. ii. present, nay, prominent, and some important rules of law in which it is implied have already been settled. In particular it is established that if the corporation becomes liable upon contract or for tort, this does not give a remedy against the persons, lands or goods of the corporators; the corporation itself is liable; execution will be done only on its lands and its goods. The cor- We go back but a little way in the Year Books and the vanishes idea that we have been watching begins to disappear. The pu^ue it. figure of the ideal person vanishes, or rather it seems at times to become a mass of natural persons. One instance, a very late one, will serve to illustrate this change. So late as 1429 an action of trespass was brought against the Mayor, Bailiffs and Commonalty of Ipswich and one J. Jabe'. The defendants pleaded the, to the modern lawyer marvellous, plea that Jabe was one of the commonalty and therefore was named twice over. If the defendants are found guilty then (it was urged) Jabe will be charged twice over; besides he may be found not guilty and the commonalty guilty, that is to say, he may be found both guilty and not guilty. We do not know how the case was decided; but it was twice discussed. Incidentally a fundamental question of corporation law was raised. Suppose that judgment is given against the commonalty, can the goods of the individual members of the commonalty be taken in execution ? On the whole the judges think that they can not, but are not very positive about this. They have to make an admission of great importance to us, namely, that it is the common course in the King's Bench that if a community be amerced, the amercement shall be levied from all the goods of the members of the community". The obvious tendency of this admission they seek to avoid by saying that there is a great difference between the king and anyone else. As we shall hereafter see this admission was unavoidable; the goods of the members of municipal communities were constantly treated as liable to satisfy the king for fines and amercements inflicted on the community as a whole and for debts due by the community as a whole. And a mere doubt about the- general principle of corporate liability occurring at so late a date 1 Y. B. 8 Hen. VI. f. 1 (Mich. pi. 2) ; f. li (Mich. pi. 34). 2 The words are ' sera levie de touts biens etc' ; it is clear from the context that this means 'shall be levied from all the goods of the members.' OH. II. §12.] Fictitious Persons. i77 as 1429 is very remarkable'. We have indeed observed before now that the non-liability of individual corporators for the debts of the corporation can not be regarded as of the essence of a corporation, still unless such non-liability had been a common phenomenon the modern idea of a corporation would hardly have been formed. And in this case the very justices who are contending for this non- liability describe the common- alty by a term which suggests that it is the sum of its members ; they do not call it ' a person,' or * a mere name,' they say that it is ' aggregatum ex omnibus.' In all this there is nothing to surprise us. Very surprising Gradual it would have been had the English lawyers of Bractoa's day of the™"''* obtained a firm hold of the notion of a universitas, a person S^Z™" which has a legal being distinct from that of the sum of its members. In that case they would have been ahead of their Italian contemporaries, who had Code and Digest to set them thinking. It would be a great mistake to suppose that what we are wont to consider the true theory of universitates lay so plainly written on the face of the Roman law-books that no one could read them attentively without grasping it. The gloss- ators did not grasp it. Bracton's master Azo had not grasped it. They were by no means certain about the difference between the universitas and the societas. The canonists of the thirteenth century were just beginning to proclaim that the universitas is a persona and a persona ficta. Bracton's con- temporary, Pope Innocent IV. (Sinibaldus Fliscus), has been called the father of the modern learning of corporations. We now begin to hear the dogma (of which all English lawyers know a vulgar version) that the universitas can be punished neither in this world nor in the next, for that it has nor soul nor body. And yet when these steps had been taken many an elementary question lay open to the civilians and canonists^. 1 In 1437 it is said that if a man recovers debt or damages against a commonalty he shall only have execution against the goods that they have in common; Fitz. Abr. Execution, pi. 128, citing an unprinted Y. B. of Mich. 16 Hen. VI. 2 See Gierke, Deutsche Genossensohaftsrecht (a most interesting book), especially vol. iii. pp. 202-6, 227-285. Innocent says, ' cum collegium in causa universitatis fingatur una persona.' Johannes Andreae says, ' universitas non est capax poenae capitalis, oorporalis, spiritualis .... cum corpus animatum non habeat ad hoc aptum.' The amusing question was discussed whether a corporation could be a godmother. 478 The Sorts and Conditions of Men. [bk. ii. The law of 'Pcos premised, we turn to the law of Henry III.'s day, for time. the purpose of hearing what it has to say (1) of corporations in general, and (2) of the more important kinds and species into which corporations may be divided. But at once we discover that of corporations in general very little is said, and the law is not dividing corporations into various kinds, thus proceeding from the abstract to the concrete, rather it is slowly coming to the idea of a corporation by dealing with corporations (if so we may call them) of several very different kinds. The com- In the first place we can find in our law-books no such terms as corporation, body corporate, body politic, though we may read much of convents, chapters, and communities. The largest term in general use is community, commonalty, or commune, in Latin communitas or communa. It is a large, vague word ; in the fourteenth century it is constantly applied to the English nation, ' the community ' or ' the commune of the land ' ; it is applied to the Cistercian order' ; it is applied to the University of Cambridge, for ' in the vill of Cambridge there are two communes, one of clerks and one of lay men'' ' ; it can be applied to ' the community of merchants who hold the king's staple of wools'' ; it can be applied to the ' bachelors ' of England who in 1259 have joined together to obtain concessions from the king and barons*. But certainly we dare not at once translate this by corporation, for if on the one hand it is describing cities and boroughs which already are, or at least are on their way to become, corporations, it will stand equally well for counties, hundreds and townships, which in the end have failed to acquire a corporate character, and we should be very unwilling to suppose that the corporate character once defi- nitely acquired was afterwards lost. One term there was (so it may seem to us) capable of binding together all the groups of men that were personified, namely, the word universitas. But the fate of this word has been curious and instructive. In our modern languages the Roman word that most nearly answered to our corporation has come to stand for the corporations of one small class, the learned corporations that were founded in the twelfth and thirteenth centuries and others that in later days were fashioned after their likeness. These were in the 1 Eot. Pari. i. 420. ' Bot. Pari. ii. 47. = Eot. Pari. ii. 191. ■* Ann. Burton, 471 : ' communitas bacheleriae Angliae.' CH. II. § i2.J Fictitious Persons. 479 middle ages the corporations by preeminence, and if the universities of Oxford and Cambridge cared to assert that they are the oldest of all English corporations something might certainly be said in favour of their claim. For the rest, the word universitas is of common use in legal documents ; but only in one context, and one which shows how vague a term it could be. The maker of a charter salutes ' All the faithful in Christ,' or 'All the sons of Holy Church,' and then requests their attention by Noverit universitas vestra. Now no doubt, as already said, the idea of the Church as the mystical body of Christ has had an important influence on the growth of the law of corporations; it did much towards fashioning for us the anthropomorphic picture of the many members in one body. Still in days when the word universitas was put to its common- est use in describing a world-wide divinely created organization, it could be of but little service to lawyers as an accurate word of art. Bracton has a little to say about universitates ; it is meagre, Bracton it is vague, it is for the more part borrowed from Azo, but none mdversi- the less it is instructive. In the first place, the cities and '"'" boroughs are the only examples of universitates which occur to him. In the second place, following the Institutes', he admits that there are res universitatis which are to be contrasted with res singulorum. Thirdly, no definite examples of res universitatis can he give save those that are given by the Institutes, namely, the theatrum and stadium. The inference is obvious that, though he allowed the possibility of a universitas holding land, he knew little of the English city or borough as a landowner; it is not in his manner to give Roman examples when he can give English, while as to our medieval boroughs having stadia et theatra, that is nonsense. Fourthly, he knows that if the English universitas, the city or borough, has but little land and few goods, it has magnificent libertates, franchises, governmental powers and immunities, and these are a common subject of litigation. Fifthly, when he comes to speak of such litigation he speaks vaguely, and hardly distinguishes between the univer- sitas and the aggregate of singidi. Sixthly, he nowhere makes an act of royal or public power necessary to the existence of a 1 Inst. n. i. 6 : ' Universitatis sunt, non singulorum, veluti quae in civi- tatibus sunt, ut theatra, stadia et similia et si qua alia sunt communia civitatum.' 480 The Sorts and Conditions of Men. [bk. ii. universitas. Lastly, he does not bring any ecclesiastical bodies under the heading of universitates ; they fall within another form of thought'. No law as Being unable to find any theory about corporations in porations general we are obliged to descend to the various kinds of m genera . gQj.pQj,a,tions, to consider, that is, the manner in which the law of the thirteenth century conceived those various groups of men which seem, to us to have a more or less corporate existence. They are either ecclesiastical or civil. Ecciesias- At the end of the middle ages there are numerous ecclesias- tical cor- . . "^ ' porations. tical corporations, ' corporations aggregate such as abbot and convent, dean and chapter, ' corporations sole ' such as bishops and rectors, and these entities there have been for many centuries past and they have been constantly before the courts ; ' Braoton, f . 8 : ' Universitatis vero sunt, non singulorum, quae sunt in civitatibus, ut theatrum, stadia et huiusmodi at si qua sunt in civitatibus communia ' ; f . 180 b : ' Item videre debeut [iuratores in assisa novae disseisinae] utrum tenementum fuerit sacrum et dec dedioatum, vel quasi sacrum, sicut publicum, vel universitatis ut stadium, theatrum, muri et portae civitatum' (the muri and portae are from Inst. ii. i. 10) ; f. 207 b : ' Item tenementorum quoddam nee sacrum, nee sanctum, sed publicum alicuius, scilicet universitatis vel communionis vel omnium et non alicuius hominis privati vel singularis, siout sunt theatra et stadia vel loca publica, sive sunt in civitatibus vel extra ' ; f. 228 b : ' Item [servitus poterit esse] personalis tantum . . . item localis et non oertis personis sicut alicuius universitatis, burgensium et civium, et omnes oonqueri possunt et unus sub nomine universitatis ' (this concerning ' servitudes,' in particular common of pasture) ; f. 56 b : ' Item esto quod dominus rex (here we come to something practical), duobus oonoesserit aliquam libertatem, ut si alioui universitati, siout civibus vel burgensibus vel aliquibus aliis quod meroatum hab'eant vel feriam in villa sua, civitate, vel burgo ... si postmodum concedat oonsimilem libertatem aliquibus in regno suo . . . secundum quod praedictum est videndum erit qui illorum praeferri debeant in tali libertate ' ; f. 102 : a real action may be brought ' nomine alicuius universitatis sicut in rem communem ' ; f. 171 b, if the king errs the ' universitas regni et baronagium ' may perhaps correct his errors 'in curia domini Eegis.' The passage on f. 8 in which Bracton draws a distinction between two kinds of res ■universitatis is horribly mangled iu the printed text (for usualia read alia). He is following Azo, who is taking part in a controversy^ which divided the glossators. Res universitatis, according to Azo, are of two kinds ; thus places left open to the use of all the citizens, such as the theatrum and stadium, belong to the universitas not merely in dominio but also in urn ; but the fundi and servi of the civitas, though in dominio et fructu they belong to the universitas, do not belong to it in usu, for they belong to all the citizens in such a way that they belong to no one of them. Gierke (Genossenschaftsrecht, iii. 211) remarks that Azo identifies the uni- versitas with the sum of the citizens. As to Bracton, he may or may not have understood Azo's distinction, but if he was unfamiliar with theatra et stadia, he was equally unfamiliar with any fundi et servi of English civitates. CH. II. § 12.] Fictitious Persons. 481 but when we begin to trace the law's dealings with them, we find that there have been several processes at work which have been transforming, not so much the practical upshot of legal rules, as the forms of legal thought. As the owner or holder of what we may loosely call 'church lands' several different persons or sets of persons have appeared, first God and the saints, then the church itself, and then the corporation aggregate or corpor- ation sole which is, as it were, incarnate in some abbot and convent, dean and chapter, bishop or rector. Perhaps the oldest of all juristic persons is the god, hero or The saints saint; but then it is we who consider him as 'juristic'; his worshippers who gave him lands and goods regarded him, if in one sense as a supernatural person, yet in another and a very real sense as a natural person ; he was no creature of human thought, he lived, he could hold property \ 'God's property and the church's twelve-fold ' ; — such were the first written words of English law I In the Anglo-Saxon land-books this notion that God and the saints are the true owners of what we should call 'church lands' is 'put before us in many striking phrases'. In the oldest of them the newly converted .^thelbirht says 'To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides do I give a portion of my land^' The saint is the owner; his church at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. If a man will give land to the chief of the Apostles he should give it to St Peter and his church at Gloucester, or to St Peter and his church at West- minster ; Justinian himself had been obliged to establish a rule for the interpretation of testaments by which the Saviour or some archangel or martyr was nominated heir and no church or monastery was named'. The Anglo-Saxon charters and Domes- day Book seem to suppose even a physical connexion between the land given to a saint and the particular church with which it is, or is to be, legally connected; geography must yield to law ; the acres may be remote from the hallowed spot, nevertheless 1 Gierke, Genosaenschaftsreoht, ii. 526-528 ; Heusler, Institutionen, i. 208, 314. 2 ^thelb. 1.' " Gierke has made a great collection of these phrases. * Kemble, Cod. Dipl. No. 1 ; Stubbs and Haddan, iii. 52. = Cod. 1. 2 (de SS. Ecelesiis), 26. P. M. 31 482 The Sorts and Conditions of Men. [bk. ii. they ' lie in the church ^' Just as the earl or thegn may have many manors and a piece of land remote from the manorial centre, perhaps a set of houses in some far-off borough, may ' lie in ' or 'be of one of those manors, so the saint will have many churches each with land belonging to it. Gradually (if we may so speak) the saint retires behind his churches; the church rather than the saint is thought of as the holder of lands and chattels. But how is the church conceived ? In the first instance very grossly as a structure of wood and stone standing on a particular spot. Land belongs to a church, is an ap- purtenance of a church, just as other land belongs to or is appurtenant to some hall or dwelling house. But as the saint retires the idea of the church is spiritualized, it becomes a person and, we may say, an ideal, juristic person. When seals come into use the legends upon them testify to the permanence of these ideas. A seal is ' the seal of St Alban Protomartyr of the English.' The saint's ^\\ this while of course there are human beinsrs who are admini- . . , ^^ . . ° strators. directing the affairs of the saint and the church, receiving, distributing, enjoying the produce of the land. They are the saint's administrators ; they are the rectores of his church, his and its representatives. Gradually some of them, notably the bishops, since their powers of administration are very large, come to be looked upon as landholders, while in other cases an organized group of such administrators is looked upon as the landholder ; but still the land which the bishop has as bishop is hardly his own ; when he demands it, he demands it not ut ius suum, but ut ius ecclesiae sitae. niustra- Very often in Domesday Book the saint is the landowner ; Domesday Saint Paul holds land. Saint .Constantine holds land, the Count '"' ■ of Mortain holds land of Saint Petroc''. Leofstan held land under 'the glorious king Edmunds' Often a particular ec- clesia, or an qhhatia, holds land. Sometimes the land is described as that of the saint, but the church is said to hold it*; sometimes this relation is reversed, the land is the land of the 1 Gierke, ii. pp. 542-5. See e.g. Kemble, Cod. Dipl. No. 847 : ' ic wille «£Bt ISffit land EBt Merseham . . . ligee into Cristes oircean on Cantwarabyrig ' ; D. B. i. 91 b : 'in aeoolesia Carentone iaoet una hida et dimidia ... in aeoelesla de Curi est dimidia hida ' ; Ibid. 210 b : ' Haeo terra fuit in aecelesia S. Benedicti. ' 2 D. B. i. 121. 3 D. B. ii. 416 b. * e.g. D. B. i. 104 : ' Terra S. Stefani de Oadomo : Ecolesia Cadomoneusis tenet de Bege Northam.' CH. II. § 12.] Fictitious Persons. 483 church but the saint holds it^ Often again the land is spoken of as that of the ruler of the church ; this is frequently the case when a bishop is concerned : — the land is the land of the Bishop of Exeter and the Bishop of Exeter holds it. Still this is no invariable rule; the church of Worcester, an episcopal church, has lands and St Mary of Worcester holds them^ and it is not the Bishop of Rome, but the Roman church of St Peter the Apostle who holds land in Somerset'. Sometimes the abbey holds land, sometimes the abbot ; sometimes again a distinction is drawn between abbey and abbot ; the demesne manors are held by the church itself, but the manors given to knights are held of the abbots There are cases (not very many) in which groups of canons are said to hold' lands'*, to hold them in common'. We have seen how Bracton laid stress upon the usual form The of pious gifts; they are made in the first place to God and the an owner, saints; only in a secondary way are they made to abbots, monks and the like '- Now this idea of the saint or the church as the subject of rights prevents the emergence of many difficulties which puzzled the lawyers of later days. Especially was this The parish the case when the church was an ordinary parish church with but one ecclesiastic in any way connected with it. That person was the rector of the church and during his tenure of office he might be said to bear, or to be, the persona of the church. But still the land of the church belonged to that church ; the church was not only its owner but also its possessor, the church was seised of the land. When the rector dies or resigns his post there is no breach in the ownership or even in the posses- sion. It is common to find a rector pleading 'I found my church seised of that land '. The theory is well stated in a judgment of 1307 : — A church is always under age and is to be treated as ' e.g. D. B. i. 165 : ' Terra aecolesiae de Bade : S. Petrus de Bada tennit Alvestone.' •> D. B. i. 164 b. 3D. B. i. 91. * e.g. D. B. i. 103 b : ' Terra aeoclesiae de Tavestoch . . . Ipsa aecclesia tenet Middeltone . . . Goisfridus tenet de abbate Lideltone . . . Ipsa aeeolesia tenet Adrelie . . . Eadnlfus tenet de abbate Torneberie.' = D. B. i. 136 : ' Canonici Lundonienses tenent ' ; ib. 146 : ' Canonici de Oxeneford tenent'; ib. 157: ' Canoniei S. Fridesvidae tenent'; ib. 247 b: 'Canonici de Hantone tenent.' " D. B. i. 17 : ' Canonici de Cicestre tenent communiter.' 7 See above, pp. 222, 227. 31—2 484 The Sorts and Conditions of Men. [bk. h. an infant and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age '. Here we have a juristic person, the church, with a natural person as its guardian, and with the patron and the ordinary to check that guardian in his administrative acts, for some things the rector can not do without the consent of patron and ordinary. Had this simple, and not inelegant, principle been held fast, our later law books would have been relieved of some cumbrous disputations about 'the kind of fee' that a parson hasl The The case of an abbey was less simple in theory, though the abbatial , • , , i- ,..,., ° , chnrcb monarchical character oi its constitution deprived some specula- tive questions of their importance. The ecclesia or abbatia suc- ceeded the saint as the subject of proprietary rights. But, at least in the view of the king's courts, the abbot's power was almost that of an absolute owner of lands and goods. Already in Domesday Book we see that it matters little whether one says that the land is held by the church of Ely, the abbey of Ely, or the abbot of Ely. And so in later pleadings: — 'the Abbot of York comes and says that the church of York possess- ed that [parish] church and had it ever since the Conquest'; 'the Abbot of Rochester says that his church has had and possessed it these thirty years'; 'the Abbot of Abingdon says that the abbey of Abingdon was always seised of toll in that fair I' When lands are given to an abbey it is rare to find no mention of 'the convent' or 'the monks' as well as of God, the saint and the abbot. When the abbey lands are alienated the alienation is usually said to be made either by the abbot and convent, or by the abbot with the consent of the convent. When the abbot demands such lands, he demands them ' as the 1 Plaoit. Abbrev. 304 (Norff.). Y. B. 21-2 Edw. I. p. 33: 'le eglise est dedeinz age.' Comp. Bract, f. 226 b : ' Et cum ecclesia fungatur vice minoris, acquiritur per reotorem et retinet per eundem, sicut minor per tutorem. Et quamvia moriatur rector, non tamen cadit ecclesia a seisina sua, de aliquo de quo rector seisitus moritur nomine eoclesiae suae, non magis quam minor si oustos suus moriatur.' Thus it is to Bracton a matter of indifference whether the church be seised by the instrumentality of its rector, or the rector be seised on behalf of his church ; the two phrases are equivalent. 2 Co. Lit. 300 b, 301a. 2 Placit. Abbrev. 27 (Ebor.); 32 (Northampt.) ; 85 (Berk.). CH. II. § 12.] Fictitious Persons. 485 right of his church'. For all this the temporal courts are apt to treat the abbot as the one and only natural person who has anything to do with the proprietary rights of the abbey. To the complete exclusion of convent or monks he fully represents the abbey before the law ; he sues alone and is sued alone'. In the course of the thirteenth century the tem- poral courts so far gave effect to principles of ecclesiastical law forbidding prelates to dissipate the lands of their churches", that they would give to an abbot an action for recovering lands that had been alienated by his predecessor without the consent of the convent. But this action was given to the suc- cessor, not to the cdnvent. Had the convent raised its voice, it would have been told that all its members were dead in law ; and even the succeeding abbot could not get back the land without a law-suit ; the alienation was voidable, not void ^ And so with obligations; the question as to these very com- monly takes the form ' when and how can an abbot bind his successors ? ' rather than ' when and how can an abbot bind his church or the convent ?' In short, owing to the legal deadness of the monks, the abbey property seems to be administered by, and represented before the law by, (and we may easily pass thence to possessed by and owned by) the series of successive abbots. In the hands of the king's justices even this series is apt to break up into a set of disconnected links each of which is a natural person. Each successive abbot might sue for lands of which the church had been dispossessed during the abbacy of one of his predecessors, but if a claim for compensation in respect of some unlawful act, such as an abstraction of the church's goods, accrued to one abbot, it died with him and was not competent to his successor. Actio personalis moritur cum persona, and here the person wronged is dead, for he was a natural person and could die. To make the law otherwise, a clause in the statute of 1267 was necessary*. Thus though even in the legal notion of an abbey there is an element that we may call 'communal,' an element which is recognized by ' The same is true of an independent priory ; the prior is its representative before the law. ^ See e.g. oo. 1, 2, 3, X. 3, 10 ; two of these three passages deal with English cases. 3 For the writs of entry 'sine assensu' see Braoton, f. 323; Note Book, pi. 866, 1727 ; Eeg. Brev. Orig. f. 230. * Stat. Marlb. c. 28. This came of our having no ' real ' action for movable 486 The Sorts and Conditions of Men. [bk. ii. the ordinary forms of conveyances and obligations, and sanc- tioned by the rule that alienations of land are voidable if made without the consent of the convent, this element is by no means prominent and the abbot's powers of dealing with property and of binding the abbey (that is his successors) by contract, are limited much rather by the idea of the church itself as the true subject of rights and duties, than by any principle that would make him but one among a number of corporators. The The case of a bishop is not essentially unlike that of an episcopal ciinrch. abbot. True that the lands of the see are very often, from Domesday Book downwards, spoken of simply as the lands of the bishop ; the fact that they constituted a barony made such language the more natural^; none the less they were the lajnds of his church \ And in the bishop's case it is at least necessjary to distinguish the natural man from the bishop'. All the abbot's lands are the abbey lands, but a bishop may well 1 lold lands and goods which in no wise belong to his see ; he ■ svill have 'heirs' as well as ofBcial 'successors' and may mak'a a will ; occasionally he has a great private fortune. In recogniz- ing the possibility of one man having, as we should say, two capacities, a natural and a politic or official capacity, the law made an important step ; there are signs that it was not easily made^; but the idea of the church as the true owner of the episcopal lands made this step the easier; in one of his two capacities the bishop was no owner but merely a rector or custos. Again, there was a communal element to be considered. The lands of the see, if they were the lands of the bishop, were . also in some sort the lands of the cathedral convent or chapter, and this, though it might be a group of monks dead to the law, might also be a group of secular canons, each of whom was a fully competent legal person. To a small extent the law ' Placit. Abbrev. 49 (temp. Joh.) : ' Dominus episoopus Londoniensia . . . petit . . . unam sokam . . . ut ius suum quod pertinet ad baroniam suam quam tenet de episcopatu suo.' 2 The usual form of a royal charter makes this clear ; the grant is ' to God and the church of St Mary and the bishop of Salisbury and his successors,' 'to God and the church of SS. Mary and Ethelbert of Hereford and Giles bishop of the said church and his successors ' ; Eot. Cart. 67, 106. " D. B. i. 135 : ' Terra Eoberti Episoopi de Cestre. Episcopus de Cestre tenet Mumnine . . . Hoc manerium non est de episcopatu, sed fuit Eaynerii patris Eoberti episcopi.' " We shall return to this point in the next section. OH. II. § 12.1 Fictitious Persons. 487 recognized the interest of this group; without its consent the bishop could make no alienation of the church's lands that would not be voidable by his successor. Still the members of the chapter had no action if the bishop dissipated the wealth of the see without their consent, and this shows us that the person wronged by such dissipation was not a community of which the bishop was the head, but rather the church, an ideal person, whose guardian he was. He might do nothing to the disherison of his ward without the advice of his council, his constitutional advisers. There is within the ecclesiastical sphere a well marked Disintegra- movement towards individualism ; it goes on from century to eociesiasti- century. The clerical groups begin to divide their property. '^^ gJ^o^P^- As a first stage we may notice the permanent allotment of lands to specific wants of the group ; one manor supplies the monks with food, another with clothing, one in some sort belongs to the cellarer, another to the almoner, sacrist, vestiary. Such arrangements, though they seem to have been regarded as solemn and permanent, were mere matters of internal economy and, at least as regards the outside world, had no legal effect ; the abbot still represented all the lands and all the affairs of the abbey before the law. But sometimes, even in a monastic society, the process went further ; often when a bishop's church was a monastic church, as for example at Canterbury, Durham and Worcester^ a partition of lands was made between the bishop and the monks, and even the temporal law took notice of such a partition ; the Prior of Canterbury became the legal representative of one section, if we may so speak, of the now divided ecclesia of Canterbury'; even in the case of an abbey such partitions were sometimes made and the Prior of West- minster sued the Abbot ^ When the group was not monastic but secular the process often went much further; prebends were created ; the bishop held lands in right of his bishopric, the dean in right of his deanery, the prebendary in right 1 See e.g. the charter by which John confirms to the prior and monks of Durham the lands given them by their bishop ; Eot. Cart. 118. The Epistolae Cantnarienses contain a long account from the twelfth century of the litigation between the Archbishop and the monks of Christ Church touching a partition of their territory. In this case even Domesday Book shows a partition ; the Archbishop has land and ' the monks of the Archbishop ' have other land. " Y. B. 40 Edw. III. f. 28 per Finchden. 488 I%e Sorts and Conditions of Men. [bk. h. /of his prebend '. Though for ecclesiastical purposes the group I might be organic, it as a whole had little to do within the sphere of lay justice and, if we may for' a moment use the terms of a later day, the ' corporation aggregate ' was almost resolved ito a mere collection of ' corporations sole.' Communal / Still throughout the middle ages there were groups of secular ecclesiastics which, as we should say, were corporations aggre- gate and which, being composed of seculars, were not subject / to the monarchical rule of an abbot. The number and wealth / of such bodies, and therefore their importance in the history of our law, might easily be exaggerated, but still they existed, and took part in litigation; suits, for example, are said to be brought by and against the canons or the dean and canons of a church^. In these cases we seem to see all the elements of a corporation Aggregate. In the first place, there is a fic- titious personality; the lands, the affairs, administered by dean and canons, master and brethren, are the lands, the affairs, of a church or a hospital In the second place, the administrators for the time being are a legally organized body, a body which perdures while its members come and go'. In the third place, this body transacts business as a body by means of meetings and votings and resolutions^; the motive ' Early oases of prebendaries suing are Plaoit. Abbrev. 62 (Dorset); Note Book, pi. 411. As to the diTision of land between bishop and chapter, see 25 Ass. f. 116, pi. 8. ^ Plaeit. Abbrev. 53 (Hereford), action against the canons of Hereford; Note Book, pi. 482, 493, 654, 692, 886, actions by syid against 'the dean and chapter' of St Paul's. • " Bracton's best passage about this matter (f. 374 b) runs as follows : — If an abbot, prior, or other collegiate men demand land or an advowson or the Uke in the name of their church on the seisin of their predecessors, they say 'And whereof such an abbot was seised in his demesne etc' They do not in their count trace a descent from abbot to abbot, or prior to prior, nor do they mention the abbots or priors intermediate [between themselves and him on whose seisin they rely,] for in colleges and chapters t!ie same body endures for ever, although all may die one after the other, and others may be placed in their stead; just as with flocks of sheep, the flock remains the same though the sheep die; nor does one succeed to another by right of succession as when a right descends heritably, for the right always belongs to the church and the church is 'permanent : and this one sees in charters, where the gift is made first and foremost to God and such a church, and only in a secondary way to the monks or canons. * See the leases granted by the canons of St Paul's in the twelfth century ; Domesday of St Paul's, 122. Often the lessee is a member of the chapter. The canons who are present act as witnesses. CH. II, § 12.] Fictitious Persons. 489 power is not (as it is in the case of an abbey) the will of a single man. ,' We may say then that within the ecclesiastical sphere there Summary , , ^ . . y , „ , ^ . of the law have been juristic persons from an extremely remote time, about the Confining our view to England, we may say that they have existed ever since iEthelbirht sanctioned God's property with a twelve-fold bot and gave lands to St Andrew. God and the saints, it is needless to say, were not regarded as imaginary persons; still their property had to be administered for them by human persons. The saint is succeeded by the ' church,' and the personality of the church is more purely juristic. A personified building gives way to a personified institution, or a personified purpose. Then the worldly business of the church is often conducted for it, not by a single man, but by a group of men acting in common ; still these men are not the ecclesia ; no, not though they be all taken together. Thus the canonists have obtained a foundation of fact and practical law for their theories. They see and proclaim that the universitas is persona ficta, not found in the world of sense, but created by law, that it is invisible, immortal, a body that has no body and no soul. It can not sin, it can not be excommunicated, it can not commit a crime, it can not be punished ; very probably it can not commit a delict^. These theories are very gradually worked out in the thirteenth and the following centuries; they bear abundant fruit in our latest Year Books. To ' the church ' modern law owes its conception of a juristic person, and the clear line that it draws between 'the corporation aggregate' and the sum of its members. / To other volumes, the work perhaps of other hands, wejLater must leave the task of tracing the history of corporations |the cor- during the last of the middle ages ; but the general outline of f""^* '™" that history seems to be this : — Gradually the ecclesiastical \ groups became more and more the subjects of temporal law, of i English common law. This had two results. In the first place, i the ecclesiastical groups were brought into connexion with lay groups ; abbot and convent, dean and chapter, began to appear as two species of the genus ' corporation ' of which mayor and commonalty were a third species. The law of lay corporations 1 Gierke, iii. 343. Innocent IV. says 'Impossibile est quod universitas delinquat'; but many canonists held the contrary, 'Universitas et ecclesia deliuquere possunt.' 490 The Sorts and Conditions of Men. [bk. ii. (gained much thereby; the borough began to stand out in ' contrast to the sum of the burgesses as the church stood out in contrast to the sum of monks or canons. On the other hand, the co-ordination of ecclesiastical with lay bodies and a general tendency towards secularism — the doom of 'the monasteries was at hand — substituted 'a corporation' for 'a church' as the ideal subject of rights, and some results attained by the canonists were lost for a while ; — the very word ' coi"poration ' tempts one to think that the 'person' in question is an organized group of men, that this person may at moments be visibly present and active in some chapter-house or town-hall. Also ' the church ' being no longer available we had to invent the curious phrase ' corporation sole' to meet the cases in which (according to an older strain of language) the ecclesia had but one custos or one rector, and our law then plunged into clumsy debates as to whether . an abbot is tenant in fee or tenant for life', as to whether a parson has a ' qualified fee,' and the like^ interiiar~~x A.S regards the internal economy of the ecclesiastical groups, clerical our common law of the thirteenth century had little to say. Not only was this a matter for ecclesiastical law, but a deep- seated reverence for a seal served to adjourn some difficult questions which otherwise must have come before the king's courts. A natural person is bound by his seal ; he has himself to blame if some one else, at all events some one whom he has trusted, puts his seal to a bad use'. So with the church. If Brother Walter the sacrist of St Edmunds gets hold of the seal which usually hangs beside the holy bier and therewith seals a 1 Thia question is diseussed in 1442 ; Y. B. 20 Hen. VI., f. 45 (Trin. pi. 36). 2 The term 'corporation sole' seems to be a very late one; it belongs much rather to the age of Fitzherbert than to the age of Braoton. It may be exclusively EngUsh, but continental lawyers came very near to it. They personified the dignitas or the sedes. But, says Gierke (iii. 271), this did not introduce a second and independent category of juristic persons beside the corporations [aggregate] ; rather the canonists' idea of a corporation [aggregate] was already so much the idea of an institution [an ecclesia, not an organized body of men,] that the 'corporate' [or communal] element in it might disappear altogether without any essential change becoming necessary. True, he continues, the personified dignitas was not directly subsumed under the idea of a corporation, [this is just what did happen in England], but it was regarded as a phenomenon analogous to a corporation, and to some extent as a variation on the same theme. He further cites one passage in which, as it seems, Johannes de Selva speaks of the personified dignity as a corpus. 3 Glanv. X. o. 12 ; Britton, i. 164-6. groups. CH. II. § 12.] Fictitious Persons. 491 bond for forty marks to Benedict the Jew of Norwich, there is nothing for an enraged abbot to do but to depose Brother Walter'. It would seem that normally the abbot kept the seal and thus could bind the house. In 1321 it was said that many a priory in England had no common seal; the prior's seal served all purposes". A remarkable attempt was made by Edward I. and his barons to protect the house against the abbot, not so much in the interest of the monks, as in the interest of pious founders who saw their good intentions brought to naught and the fruits of their donations sent across the sea to the profit of the alien. The common seal, said the Statute of Carlisle (1307), was to remain in the custody of the prior and four discreet inmates of the house and be laid up in safety under the privy seal of the abbot. This statute should be famous, for it was one of the very few illustrations that Coke could give of his doctrine that a statute may be void for unreasonable- ness'; and certainly it would seem that in 1449 the court took upon itself to call this statute void, partly because it was self-contradictory (for how can one use a seal at all if it is always locked up ?) but also ' because if the statute were observed every common seal might be defeated by a mere surmise which could not be the subject of a trial*.' From this we may gather that the statute had but little effect. The canon lawyers of course had more to say about the way The in which legal acts could be done by or on behalf of corporations m^orities. aggregate. The one point here noticeable is that they escaped the fallacy that some natural \&\i enables a majority of members in a duly convened meeting to express the will of the corpora- tion. The hierarchical organization of the ecclesiastical group kept them from this error. The will of the corporation was ex- pressed, not necessarily by the maior pars conventus, but by the maior et sanior pars. Presumably the major part was also the saner part, but an opening was given for dissentients to repre- sent to the rulers of the church (for after all each particular church was but a member of a universal church) that the 1 Chron. Joeelini de Brakelonda, pp. 2, 4, 22. In a house that was not well ordered the obedientiaries would have seals capable of binding the house and would use them without the consent of the chapter. " Y. B. Mich. 15 Edw. II. f. 452. 3 Dr Bonham's Case, 8 Eep. 118 a ; 2nd Inst. 587-8. * Fitz. Abr. Annuitie, pi. 41 (apparently from an unprinted Y. B.) temporal commnni- ties. 492 The Sorts and Conditions of Men. [bk. ii. resolution of a majority was not really the will of the church. No precise calculus of 'sanity' could be arrived at, still the existence of some limit, however vaguely definable, to the powers of majorities was valuable as strengthening the notion of an ideal person distinct from the sum, the organized sum, of those who are called its members^ The eccie- Jt jg in qq wise Strange that the English lawyers of this age and the had not as yet brought the ecclesiastical and the temporal corporations under one heading; so essentially different were they. This we see at once when we have asked the question ' What temporal groups of men are there which can have any claim to be considered as corporate ? ' and have answered it by saying 'Chiefly counties, hundreds, townships, manors, cities and boroughs, in a word (since we can coin no better term) land communities.' The church, the religious order, the hospital, exists for a definite purpose ; for the glory of God, the honour of a patron saint, the salvation of men, the defence of the Holy Land, the relief of lepers. The ideal person has a permanent ideal will expressed in the rule of St Benedict or in some foundation charter. But for what purpose do townships and boroughs exist ? Where is the permanent, will of a city to be found ? Again, the group of monks or canons is a voluntary association; of their own free choice and by a definite act men become members of chapters or convents ; but, at least nor- mally, the member of a township can hardly be said to have chosen to be a member; it may be that he has inherited a tenement ; it may be that he has bought one ; but even in this latter case the main thing that he bought was a tenement, not a place in a community. In these respects the chapters and convents stood nearer to our modern joint-stock companies than to the medieval boroughs. The company is a voluntary association and has a definite aim clearly expressed in its memorandum and articles; it will make and vend steam- engines or the like. But the township or the borough has come into being no one knows when, and exists no one knows why. The uni- But before we turn to these ' land communities ' we ought first to notice that there are within the sphere of temporal law some other groups of men that claim to be corporate. We have already observed how the term universitas came in our 1 Gierke, iii. 323-9. verslties. OH. II. § 12.] Fictitious Persons. 493 modern languages to stand for corporations of one particular type. Very naturally the learned appropriated the learned term; very naturally it became current among masters and scholars who were largely engaged in studying and teaching Roman and canon law. And for a society of this new kind a new, or resuscitated, term was necessary, for it was not a church, a chapter, a convent, nor again was it at all like the ordinary temporal communitas, for example, that of the burgesses of Oxford. Already in the early years of the thirteenth century the term universitas was in common use at Oxford' ; the university knew itself to be a university, and no doubt its members were beginning to think of it as a person, as a person which could, for example, enter into legal transactions with the communa (not universitas) of the burgesses of Oxford^ : — ' cum fingatur una persona' — at least in Oxford these words of Innocent IV. would be understood. Still we can not say that the mere existence, apart from the teaching, of the two Universities was of any great importance in the history of our law of corporations. They were not, like the abbeys and cathedral churches, great proprietors ; they seldom came before the courts. Between them and the boroughs however there was just this likeness ; neither the borough nor the university was to any great degree an owner of lands or of goods ; on the other hand it was a holder of franchises. This, as we shall hereafter see, is an important matter. The English temporal corporations when they first appear as ideal persons appear not in the character of mere private persons, but in the character — we may almost say it — of governmental officers and magistrates who hold property in right of their offices. Their lands, their goods are few; what they own is jurisdiction, governmental powers and fiscal immunities. This is a characteristic feature of our temporal corporations in the first stage of their exist- ence; the artificial person comes into being in order that he may govern and do justice— that he may govern and do justice to the profit and ease of the members of the corporation no doubt, for no one governs or does justice without gaining thereby, but it is as much within the sphere of public as within 1 Munimenta Aoademica, i. 6, 8. And for Cambridge see the writs of 1231, Cooper, Annals, i. 41. " Munim. Acad. i. 2. 494 The Sorts and Conditions of Men. [bk. it. the sphere of private law that the nascent corporation becomes active. This is well marked in the history of Oxford. Already ia 1280 the university declares that 'from time immemorial' she has been in peaceful possession, or quasi possession, of jurisdictional powers and jurisdictional immunities*. In 1288 she has been 'from of old' in possession, or quasi possession (being learned she doubts the possibility of possessing things incorporeal) of the right to hear and determine all actions on contracts between her scholars and the laymen who live in the suburb outside the north gate". A corporation without justiciary powers over its own members would, we believe, have been almost inconceivable, and very seldom was a corporation content with these ; it at once claimed powers, varying in their extent from case to case, of doing justice between its own members and outsiders. The This is so also with the merchant gilds. They seem to gilds. occupy a curiously ambiguous position ; they look to a modern eye now like voluntary associations of traders, and now like organs of municipal government. In the latter character we shall have to speak of them hereafter; but we may well suppose that the juristic person made its appearance at a comparatively early time in the gild-hall of the brethren. Not that the gild was a trading corporation in the modern sense. In mercantile transactions with outsiders it appears rather as a societas than a universitas. It has no property of its own engaged in trade ; rather the notion is that every member of the gild guarantees and is (at least subsidiarily) liable for the debts contracted by every other member in the course of his traded Still the gild has a common purse supplied by entrance fees and fines, though this income is expended rather in potationes than in mercantile enterprises. Like the ecclesia, the domus, the gild-hall, is personified ; the half religious character of some gilds may have mediated between the ecclesiastical and civil corporations; men owe money to the domus^, make promises to the domus^, the attorney of the ^ Muuim. Acad. i. 41. ^ Muuim. Acad. i. 43. ^ Select Pleas in Manorial Courts, ii. 134-5. * Grross, Gild Merchant, ii. 5 (Andover Gild Roll, 1262): 'pro debito quod Thomas Spirecoc debuit domui.' ' Ibid. ii. 8 (1263) : ' Hugo Fromund promittit domui xij. d'. CH. II. § 13.] The King and The Crown. 495 community prosecutes on behalf of the community^ But the main property of the gild, as of the university, consists not of lands and goods, but of franchises, jurisdictional powers and fiscal immunities. On the whole neither the universities nor the gilds are Postpone- p , ■ ■ ^ 1 • p ,. ■ ment of 01 great importance in the history of our law of corporations ; our very seldom indeed have lawyers to discuss their nature. On the*iand° the other hand the land communities, as we have called them, j?^™'' are of the greatest importance. Among other questions to be answered is this — When and why were certain of these com- munities, the cities and boroughs, raised to the rank of ideal persons, while others, the counties, hundreds, townships and manors were excluded from it? But the feature of medieval corporations that has lately come before us obliges us to suspend our work. These communities are units in a system of justice and police. Only at the end of another long chapter, and (it is to be feared) after many digressions, shall we be able to speak of the mode in which they or some of them are personified by the law. § 13. The King and The Crown. The legal position of the king has been fully discussed by is there historians of our constitution, and on the province which they * ™^" ' have made their own we do not intend to trespass. Nor do we think that a chapter on the law of persons is the proper place in which to collect all or nearly all that can be said of the king. Still there is a question concerning him to which we are naturally led by what we have recently said about fictitious persons : — Is the king merely a natural person, or does the law see beside or behind the natural Henry or Edward some non- natural, ideal person, some 'corporation sole'^1 In the sixteenth century our lawyers will use mystical Sixteenth language of the king. At times they will seem bent on theories of elaborating a creed of royalty which shall take no shame if set two boSes. beside the Athanasian symbol. The king has a body corporate in a body natural and a body natural in a body corporate. They can dispute as to whether certain attributes which belong 1 Gross, ii. 318 (Andover Gild Boll, 1327): 'Johannes le Breghe queritur pro tota oommuuitate versus Johannem Selyde.' 2 See Gierke, Genossenschaftsreoht, ii. 562-8. 496 The Sorts and Conditions of Men. [bk. it. to the king belong to him in his natural or in his politic capacity. Some of theii' grandiose phrases may be due to nothing better than a desire to stand well with the reigning prince ; some of their subtle distinctions may be due to that love of mystery which is natural to us all; nevertheless we must allow that there were real difficulties to be solved and that the personification of the kingly office in the guise of a corporation sole was in the then state of the law an almost necessary expedient for the solution of those difficulties. Also we might show that if on the one hand this lawyerly doctrine was apt to flatter the vanity of kings, it was on the other hand a not very clumsy expression of those limits which had gradually been set to the king's lawful power and that it served to har- monize modern with ancient law. But we are now to deal with ancient times, in particular with the thirteenth century. The metaphysical king, the corporation sole, does not yet exist, the difficulties which are met by his creation are only be- ginning to arise. Personi- In the first place let us notice that a great deal can be of'theking- done without any personification of the kingly office. The ueces"aiT ™®^® amount of the business that is performed in the king's name but without his knowledge does not demand any such feat of jurisprudence as the creation of a new person. The ordinary law of agency is equal to the occasion. To this we may add that the gulf between the king and the greatest of his subjects is by no means so wide as it will afterwards become. A great prelate or a palatine earl will like the king have many high placed officers, stewards, chancellors, treasurers and the like, who will do very many acts in his name, judicial acts and governmental acts, of which in all probability he will hear no word. The king's Then again the rights of the king are conceived as differing intensified from the rights of other men rather in degree than in kind. At nghts* *^® beginning of Edward I.'s reign this is expressed by lawyers in their common saying ' The King is prerogative.' As yet the term prerogative is hardly used except in this adjectival man- ner. It suggests to us that the king has the rights which are given to others by the ordinary law, substantive law or pro- cedural law, but that we are likely to find that each particular right is intensified when it is the king's ; the usual definition of it is exceeded, ' for the king is prerogative.' For example. OH. II. § 13.] The King and The Crown. 497 he has the rights of a feudal lord to wardships and marriages, but in his case these rights are augmented. If the whole law were written down we should not be sent to one great chapter of it to learn the law of the kingship ; rather we should see at the end of every proposition of private law or procedural law some note to the effect that this proposition must be modified before it is applied to the king's case. ' Prerogativity ' is ex- ceptionality '- Such is the general conception ; and turning to particulars The king we shall usually see that the king's rights can be brought \oxis. ^^ under it. He has hardly a power for which an analogy can not be found elsewhere. If he holds a court of his tenants in chief, his barons will do the like ; if he asks an aid from them, they will ask an aid from their knights; if he tallages his demesne lands, they can exercise a similar right. It is with diflSculty that they are restrained from declaring war. If he prosecutes criminals this is because they have broken his peace and other lords are constantly proceeding against offenders who have done them ' shame and damage " by breaking their peace^ If he pardons a criminal he does but release his rights and he can not release the rights of others, he can not prevent a private prosecutor from urging an appeal of felony ^ The kingly power is a mode of dominium ; the ownership The of a chattel, the lordship, the tenancy, of lands, these also are pTOlerty."' modes of dominium. One may argue backwards and forwards between the kingly right and the rights of private landholders. This is very noticeable in the case of inheritance, for, as is well known, the notion that the kingship is in some sort elective is but slowly dying ^ For all this the king is con- ceived to hold his lands by a strict hereditary right, and ' T. B. 20-21 Edw. I. p. 57 ' Mes yl ne tendy nul averement pur le Eoy, pur ooe ke le Roy sy est prerogatyf ; p. 69 ' Le Eoy est prerogatif ; par quey nul prescripcion de tens ne court eneontre ly ' ; p. 112 ' You can not, in this writ of right, demand on the seisin of kings Bichard and John and Henry, in such wise that if one fail, you may hold to the others.' ' Sir, we can, for the king is prerogative.' Y. B. 33-35 Edw. I. p. 407 'Le roi est en sa terre si prerogatif qil ne voet aver nul sur luy '...'Pur sa prerogativete ne serrioms mie oustez de nos services.' 2 Bracton, f. 132 b: 'Nou enim poterit rex gratiam facere cum iniuria et damno aliorum. Poterit quidem dare quod suum est, hoc est pacem suam,... quod autem alienum est dare non potest per suam gratiam.' ' Bracton, f. 107 : ' Ad hoc autem oreatus est et electus, ut iustitiam faciat universis.' P. M. 32 498 The Sorts and Conditions of Men. [bk. ii. between his lands and the kingship it would be hard to dis- tinguish. This is the way in which King Edward asserts his title to land in Lincolnshire : — ' Richard my ancestor was seised thereof in his demesne as of fee, and from the said Richard, because he died without an heir of his body, the right de- scended to a certain King John as his brother and heir, and from him to King Henry as his son and heir, and from the said Henry to me as bis son and heir'.' This may seem very curious, for nothing is said of Arthur, and undoubtedly in Edward I.'s day the ordinary law of inheritance would have prefen-ed Arthur to John. But this brings out another point: — You may argue from the whole kingdom to each acre of land in it. The problem which was opened by the death of Richard was just at that time an unsolved problem — primogenitary rules were as yet new — Glanvill did not know how it should be answered ^ John got the crown. This was a precedent in favour of the uncle against the nephew, and as such it was treated by Bracton in the case of private inheritances. The nephew may have the better right, but if the uncle is the first to get possession, the nephew can not succeed in an action 'because of the king's case'.' In Edward I.'s day lawyers know well enough that there is something odd in the king's pedigree ; we must not argue about it *. Still the descent of the crown was not so unique a phenomenon then as it is now-a-days. No one, it may be, would have proposed to divide England among several coheiresses, and we can not say with certainty that a woman could have inherited the crown ; but then the question whether the county of Chester was partible had lately been treated as a very open one', while in Scot- land not only was the crown claimed for the Maid of 1 P. Q. W. 389. See also Note Book, pi. 199, where ' the young king,' Henry son of Henry II., is mentioned in the pedigree ; • et de ipso Henrico [secundo] deacendit ius Ulius advocacionis Henrico Begi filio suo et de ipso Henrico Begi Eioardo fratri suo.' 2 Glanvill, vii. 3. 3 Bracton, f. 267 b, 282, 327 b: Note Book, pi. 230, 982. In the Tr^s ancien eoutumier, ed. Tardif, p. 13 we find 'Filius, licet postgenitus, heres pro- pinquior est hereditatis patris sui quam nepotes, filii fratris sui primogeniti'; but a glossator adds 'sicut oontingit de Johanne, rege Anglico, et de multis aliis, et hoc est falsissimum iudicium.' ■• Y. B. 20-21 Edw. I. p. 73 ' Nota ke nul home ne put chalanger la descente encontre le Boy, tot seyt eoe en un bref de droit.' 6 Note Book, pi. 1127, 1227, 1273. CH. ir. § 13. J The King and The Crown. 499 Norway, but Bruce and Hastings urged that the king- dom was divisible and should be divided between them and Ballioli. Even if we find that the king has some unique rights, The king's rights for which analogies will be sought in vain, still they are be exer- rights that a natural person can really exercise. Thus the y^, ^ royal lawyers are bent on establishing or reviving the doctrine that all justiciary powers are derived from the king. In terms made familiar by the canonists, they assert that the king is the ' judge ordinary ' of the whole realm and that all others who administer justice are 'judges delegate.^' They have difficulty enough in making good this assertion in the teeth of feudal claims ; but when it is made, it does not attribute justiciary powers to a fictitious person, it attributes them to a real Henry or Edward. When Bracton says that were the king strong enough he would do all justice in person, he means what he says'. Far at all events from him is the thought that the king may not sit as the active president of his own court. King Henry sits as such and important cases will be adjourned if he be not present*. Justices have been fined for proceeding in the king's absence ^ There is something anomalous in the ascription to a king of powers that he may not lawfully exercise in person, something which may suggest that our ' king ' is rather a figment of the law than a man; but that a man should be able to do by delegate what he may do himself if he pleases — there is nothing strange in that. Then again such a constitutional doctrine as that the king's will can only be expressed by formal documents, sealed, or signed and counter- signed, does not belong to the twelfth or thirteenth centuries. 1 See the Processus Sootiae, Foedera, i. 762. Bruce at one turn in the argument asserted 'quod mulier regnare non debet, quia officium regiminis exercere non potest.' The theory that the kingdom was partible was but the second string to his bow. At another turn he asserted that the ordinary rules of inheritance were inapplicable and that the canons for the inheritance of a kingdom should be found in 'the law of nature.' 2 Bract, f. 108 : ' Dictum est supra de ordinaria iurisdiotione, quae pertinet ad regem, consequenter dicendum est de iurisdictione delegata.' 3 Bract, f. 107. * Plac. Abbrev. p. 107 (25 Hen. III.): 'Et quia dominus rex absens fnit, nee fuerunt ibi nisi pauci de consUio domini Eegis, noluerunt illi qui praesentes fuerunt adiudicare duellum nee aliud in absentia ipsius domini Eegis vel maioxis eonsilii sui.' 5 Bot. CI. i. 114 : writ pardoning Jacob of Poterne. 32—2 500 The Sorts and Conditions of Men. [bk. ii. On the contrary the king's will expressed by word of mouth is more potent than any writ '. The king The rule which in later times will be expressed by the can do wrong, but phrase ' The king can do no wrong ' causes no difficulty. That lies against 7°^ can neither sue nor prosecute the king is a simple fact, hun. which does not require that we shall invest the king with any non-natural attributes or make him other than the sinful man that he is. The king can do wrong ; he can break the law ; he is below the law, though he is below no man and below do court of law. It is quite conceivable that he should be below a court of law ^. In the second half of the century some lawyers are already arguing that this is or ought to be the case'. What is more, a pious legend of Westminster Hall tells how 'in ancient times every writ of right droiturel or possessory lay against the king.*' The lawyer who said this in Edward I.'s day was careful to leave the ancient times indefinite ; probably he was referring to the good old days of St Edward and, like Blackstone after him, saw ' our Saxon ancestors ' impleading each other by writs of entry^. But the legend grew and, as legends will, became more definite. In the middle of the fourteenth century the common belief was that down to the time of Edward I. the king could be sued like a private person and a judge said that he had seen a writ beginning with Praecipe Henrico Regi Angliae". If he had seen anything of the kind, it was some joke, some forgery, or possibly some relic of the Barons' War. About this matter there should be no 1 Eot. Cur. Beg. (ed. Palgrave) i. 47 (a.d. 1194) : ' Et dominus Cantuariensia [Hubert Walter, chief justiciar,] dioit quod ipse aceepit ab ore domini Regis quod ipse redderet seisinam terrae...Consideratum est quod magis ratumhabetur quod dominus Eex ore praecepit quam quod per litteras maudavit.' Kote Book, pi. 239 (a.d. 1234): ' testificatio domini Eegis per cartam vel viva voce omnem aliam probationem excedit.' " See the cautious passage in Bracton, f. 171 b. ' See the violent passage in Bracton, f. 34 and Fleta, p. 17. For reasons given in the Introduction to Bracton's Note Book, i. 29-38, we do not believe that this was part of Bracton's original text and gravely doubt whether he wrote it. * Y. B. 33-5 Edw. I. p. 471 : t' en auncien temps chesoun bref e de dreit e de possessioun girreit ben ver le roi.' " Bl. Comm. iii. 184: 'In the times of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry.' » Y. B. 22 Edw. III. f. 3 (Hil. pi. 25); 24 Edw. III. f. 55 (Trin. pi. 40); 43 Edw. III. f. 22 (Mich. pi. 12). The passages are given by Allen, Prerogative, 190. CH. 11. § 13.j The King and The Crown. 501 doubt at all. Bracton, no mere text writer, but an experienced judge of the highest court, says plainly that writs do not run against the king'. ' Our lord the king can not be summoned or receive a command from any one ' — this comes from a judg- ment of the king's court in 1234<.'' ' Our court is not above us and can not summon nor compel us against our will' — this comes from a writ tested by Hubert de Burgh in 12231 This positive evidence is strong; the negative evidence is over- whelming. If Henry III. had been capable of being sued he would have passed his life as a defendant. In the opinion of many of his subjects he was for ever breaking the law. Plea rolls from his reign there are plenty, and in the seventeenth century they were jealously scanned by eyes which did not look kindly upon kings. Where are the records of cases in which King Henry issued writs against himself? We can not but believe that Praecipe Henrico Regi is what Francis Bacon called it, an old fable*. To this must be added that the king has a very considerable power of shielding those who do unlaw- ful acts in his name and withdrawing from the ordinary course of justice cases in which he has any concern. If the king disseises A and transfers the land to X, then X when he is sued will say that he can not answer without the king and the action will be stayed until the king orders that it shall proceed. So if the king's bailiif is charged with a disseisin done in the king's name, the justices will indeed take a verdict about the facts, but they will give no judgment until he has been consulted ^ Still all this ' prerogativity ' is compatible with humanity, and when the king appears as a plaintiff or submits to be treated as a defendant the difference between him and a private person is less marked in the thirteenth century than it is in later times. When he is a plaintiff he will often employ 1 Bracton, f. 5 b: 'Si autem ab eo [so. a rege] petatur, cum breve non currat contra ipsum, locus erit supplioationi. ' Again f. 382 b : ' summoneri non potest per breve.' See also f. 52, 107, 171 b, 368, 412 ; also Note Book, i. pp. 26-33. " Note Book, pi. 1108. 3 Eot. CI. i. 549. * Bacon, Case de Rege Inconmlto (Works, ed. Spedding, vii. 694) : ' for you wiU not revive old fables (as Justinian calls things of that nature) Praecipe Henrico Regi etc. ' ■^ Bracton, f. 171b. Note Book, pi. 401, 1106, 1108, 1133, 1141, 1236, 1593, 1766. Y. B. 30-31 Edw. I. p. 172 ; 33-35 Bdw. I. p. 539. Beg. Brev. Orig. 221-2. 502 The Sorts and Conditions of Men. [bk. ii. one of the ordinary writs. A defendant instead of using what even in Bracton's day was becoming the proper formula ' I can not answer without the king' will sometimes boldly say 'I vouch the king to warranty.' ' ' In the pleadings and proceedings of the king's suits,' exclaims Bacon, ' what a garland of preroga- tives doth the law put upon them!^' This garland is not woven all at once and some of its flowers were but buds in the days of Henry III. But our main point must be that there is as yet little in the law of procedure to suggest that the king is other than a natural person, nothing to suggest that he has two capacities. He enjoys the same privileges whether the matter under discussion is what we should call 'an act of state' or whether it is a private bargain. And, after all, the grandest of his immunities is no anomaly. He can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor ; that there happens to be in this world no court above his court is, we may say, an accident. Snds^nd Then again no line is drawn, at least no marked line, crown between those proprietary rights which the king has as king and those which he has in his private capacity. The nation, the state, is not personified ; there are no lands which belong to the nation or to the state. The king's lands are the king's lands; the king's treasure is the king's treasure; there is no more to be said. True that a distinction is made between ' the ancient demesne of the crown' and lands that have come to the king by modern title. The main import of this distinction is to be found in the strong sentiment — it is rather a sentiment than a rule of law — that the ancient demesne should not be given away and that if it be given away some future king may resume it'. But even here private law affords or has afforded an analogy. It is only of late years, only since Glanvill wrote, that a tenant in fee simple has been a,ble to utterly disappoint his expectant heirs by alienating his land ; his power over land which he himself has purchased has been greater than his power over lands which have descended to him and which 1 Note Book, pi. 1183: 'vooat inde ad warantum dominum Begem.' Con- trast pi. 393 : ' Bex debet ei 'warentlzare si ausus esset ilium vooare ad waran- tum siout alium hominem.' Braoton, f. 382 b ; Y. B. 21-2 Edw. I. p. 287. 2 Bacon, Works, ed. Spedding, vii. 693. 8 Britton, i. 221 : ' Eois ausi ne porraint rien aliener des dreitz de lour coroune ne de lour reaute, qe ne soit repellable par lour suooessours.' See above, p. 366. OH. II. § 13.] The King and The Crown. 503 constitute the ancient demesne of his family. The king, who asserts a right to revoke the improvident grants of his ancestors, is relying on an antique rule of family law, rather than upon any such doctrine as that kings are trustees for the nation. The idea that a man may hold land or goods in two different capacities is not easily formed. We may see this even in the ecclesiastical region. Though Slow here the personality of the saint or of the church makes the dis- ^\^ ot tinction easier, still in age after age men find far more difficulty tfg^^."''''' than we should expect in marking off office from property, in separating the lands and goods which a man enjoys or uses because he is the ruler of a church from those which, as we should say, belong to him in his private capacity. On the one hand, it is hard to prevent the ecclesiastical benefice from becoming hereditary. On the other hand, it is not readily admitted that a bishop or a parson can have property which is in no sense the property of his church. This difficulty it is which provides an excuse for that interference by the king with the goods of dead bishops, which historians are too apt to treat as sufficiently explained by mere rapacity. An abuse we are very willing to call it, but there is an excuse for it. On the death of the bishop the king is guardian of the temporalities of the church ; the dead bishop's goods are the goods of the church \ This idea is well brought out by what is told of St Hugh of Lincoln. He did not approve the new custom that bishops should make wills. Still he consented to make one lest otherwise his goods should be seized by the king. Evidently the saintly bishop thought that his goods were his church's goods ; he made a will in order to defeat, if possible, the all too logical, if impious, deduction which kings were ready to draw from this pious doctrine I King Stephen had to promise that he would not interfere with the testaments of the bishops and that on the death of a bishop intestate his goods should be distributed for the benefit of his soul by the counsel of the church ; but then he was also making something very like a renunciation of his right to a profitable guardianship of the temporalities of the vacant see'. His successors seize the ' See Luohaire, Manuel des institutions, p. 49. This notion begets the ins spolii, droit de dSpomilles, of continental law. ' Magna Vita S. Hugonis, p. 334. 3 Second Charter of Stephen: Stubbs, Select Charters; Statutes vol. i. (Charters) p. 3. 504 The Sorts and Conditions of Men. [bk. ii. goods of intestate bishops and expect bishops to apply for a licence if they want to make wills. When Archbishop Roger of York died in 1182 Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and salt-cellars. A very just retribution, says the dean of St Paul's, and quotes from his Digest 'quod quisque iuris in alterum statuerit, uti debet eodem iure,' for this Eoger had obtained a papal bull enabling him to seize the goods of any clerk in his diocese who, even though he made a testament, did not before his death distribute his goods with his own hands^ The pope was just as bad as the king in this matter. In 1246 he proclaimed that the goods of all intestate clerks belonged to him, though in the next year he retired from an indefensible position I No doubt the canonists could distin- guish well enough between the property of the church and the property of the prelate ; still we can see that this is a lawyerly distinction ; a saintly bishop, like Hugh of Lincoln, will scout it in the interest of his church, a covetous bishop will make light of it in the interest of himself and his kinsfolk, a needy king will know how and when it can be profitably ignored. No lay If these things be done within the ecclesiastical sphere tions sole where dead saints still are active, where the canon law with its theCTown! I^otnan traditions prevails, what may we not expect in the temporal sphere ? Far easier for us is it to personify a church, which actually holds the body, and is guarded by the soul, of the saint, than to personify a nation, a state. No medieval king is tempted to say ' I am the state,' for ' Ego sum status ' would be nonsense. On the other hand no one will say to him ' This land, though it may be called your land, is really the land of the state.' And so the king's land is the king's land and there is no more to be said about it. It should be remembered that in our fully developed common law the king, or crown, is the only corporation sole of a lay kind. The temporal law of the thirteenth century will aid us with no analogy if we would distinguish between the king's private property and his official property. Often enough has office become property, or rather (for this we believe to be nearer the truth) rights which older and vaguer law had regarded as half official, half proprietary, have become definitely proprietary. Earldoms and serjeanties belong to this category; but we can not distinguish between 1 Dioeto, ii. 12. He cites the rubric of Dig. 2. 2. -■^ Mat. Par. Chron. Maj. iv. 552, 604. CH. 11. § 13.J The King and The Crown. 505 the rights which the earl has as earl and those which he has as man. On the other hand, those offices which have not fallen into this category do not comprise or carry with them any proprietary rights of any kind. The shrievalty is an office, but the sherilBf as sheriff has no lands, no goods ^. What is more, trusteeship, at all events a permanent trusteeship, is as yet unknown to the law and can supply us with no analogy. No form of legal thought that is at our disposal will enable us to separate the lands of the nation from the lands of the king. But at least, it will be urged, the king can not devise the I? f^e kingdom by his will. No, but the general law is that a land- alienable? owner can not devise his land by his will ; only God can make an heir not man. And, after all, this impotence of the king has not been very clearly demonstrated. If standing in the thirteenth century we ask why on the Conqueror's death Rufus became king of the English, while Robert became duke of the Normans, it is not plain that there is any better answer forthcoming than that the Conqueror, like other lords who had lands on both sides of the sea, partitioned his estates among his sons. But as already said the fact that land can not be devised by testament is a sufficient reply to any who would draw distinctions between kingdoms and other estates. Then again in the middle of the thirteenth century it is by no means so clear as a patriotic Englishman might wish that the king of England does not hold his kingdom of the pope at an annual rent by virtue of John's surrender and Innocent's regrant^ And, as already said, if the king ought to consult his barons before he grants away any large tract of his kingdom, common opinion has expected that a great baron will consult his men, or at least profess to consult them, before he makes large grants ' We make our nearest approach to the personification of a temporal office when some oflSoer attempts to prescribe for fees or perquisites. In 7 Edw. I. a castellan of Bamborough is charged with holding certain pleas which, according to general law, belong to the sheriff. He replies, ' I found the said castle seised of this custom.' Here Bamborough castle is personified. But this is not a fruitful idea. 2 See the protests of 1301 and 1366; Foedera, i. 926 ; KoUsof Parliament, ii. 290. Stubbs, Const. Hist. § 700 : ' John's surrender and subsequent homage first created the shadow of a feudal relation, which was respected by Henry HI., but repudiated by the parliaments of Edward I. and Edward UI.' As to Bichard's transactions with the Emperor it was easy for an Englishman to hold them 'void for duress'; they were 'contra leges, contra canones, contra bonos mores'; Diceto, ii. 113. can die. 506 The Sorts and Conditions of Men. [bk. ii. out of his honour^ As to the king's treasure, it is the king's treasure and he may do what he pleases with it, though very- likely his successor may find an excuse for disregarding some or all of his bequests. Edward III. in his will, draws a marked distinction between the debts that he owes as a private person and the debts that he owes as a king ; his executors are to pay the former, while the latter will fall upon his heir and successor. We shall hardly find such a distinction -in earlier times". The king As yet no king has succeeded to another without there being an interregnum. In the case that is just happening when we make our survey this interregnum is very short. Edward I. far away in the Holy Land began to reign on the day, not of his father's death, but of his father's funeral'. But there is here no legal fiction, nothing that demands any mysterious phrase about the king's immortality. Edward I. does really reign before he is crowned and Edward II. will really reign so soon as his father has ceased to breathe. There is less excuse here for a fiction than there is in the case of a bishop, also there are fewer materials ready to the hand of the constructive lawyer. The bishop's throne must be vacant at least for a few days and meanwhile the eternally infant church has other guardians, a guardian of its temporalities, a guardian of its spiritualities. . But .looking back a little way to cases in which there has been an interregnum of considerable duration we see that lawyers have not been prepared to stop the gap with a metaphysical king, the personified kingship. When the king dies his peace dies and there is no king's peace until another king is crowned. The king then who has a peace is a mortal man. The evil consequences of this principle may have been somewhat lessened by a proclamation of the peace of one who, though he is not yet king of England, is by hereditary right lord of England. Still such a shift tells us that the only king known to the law is a natural person*. ' See above, p. 327. ^ Will of Edward III., Nicolas, Royal Wills, p. 59. He distinguishes Ijetween ' debita nostra oontemplaoione personae nostrae oontracta ' and ' debita racione regni sen guerrarum nostrarum coutracta.' " Henry died late on Wednesday. Edward's peace was proclaimed in Westminster Hall early on Thursday. But he dates his reign from the next Sunday, on which day his father was buried and the magnates took the oath of fealty. Foedera, i. 497. ' Select Pleas of the Crown (Seld. Soc), pi. 84. In John's day an appellor CH. II. § 13.] The Kirig and The Crown. 507 A case has lately occurred which, so we may well think, The king must have put the old theory of the kingship to a severe strain, nnder age. A child but nine years old was crowned. The coronation of Henry III. was an important event. It was, if we may so speak, a two-edged event. On the one hand it confirmed the doctrine of pure hereditary right ; it applied to the kingship the common land law. On the other hand it showed that a king capable of ruling was no necessity ; all that a king could do might be done by a regent and a council in the name of an infant. How William Marshall became ' rector regis et regni ' is in this context a question of no great interest. There was a grave national crisis ; there was civil war ; a foreign enemy was in the land. Those barons who had not rejected John did the obvious thing, chose the obvious man as their leader. It was not a time for constitutional dissertations. What happened during Henry's minority is of greater significance. In litigation which touches royal rights the ordinary rule of private law is applied. An action for land is brought ; the person in possession alleges that the king is his warrantor : the action must remain in suspense until the king is of full age '. Then when Henry was declared to be of full age he insisted that all charters granted in his name during his minority required confirmation, even the Great Charter and the Forest Charter. He did this we are told by the advice of Hubert de Burgh^. To exclaim against his faithlessness, his greed, his imprudence, is far easier than to discover any then admitted principle of law which would condemn him. Suppose that his guardians have improvidently alienated some piece of his demesne laud, is he not to have the ordinary right which every infant enjoys on attaining his majority'? Donations, we might say are one thing, laws are another thing and Magna Carta is a code of laws. But alleges a crime committed during the late interregnum but after ' the peace of the King then Duke of Normandy and Lord of England ' had been sworn. 1 Note Book, pi. 1500 (a.d. 1221): 'Loquela ista remaneat ad aetatem domini Begis ut tunc faciat inde voluntatem suam'; pi. 1639 (a.d. 1223): ' ludioium ponitur in respectum usque ad aetatem domini Begis.' 2 Mat. Par. (from Wendover) iii. 75-6, 91, 122. •'' Note Book, pi. 1221. The king of Scots petitions for a wardship urging in his favour something that happened during the minority. The king's council replies that this happened 'tempore Huberti de Burgo Comitis Kantiae qui amicus fuit et familiaris ipsi Eegi Scotiae et qui regnum Angliae habuit in manu sua.' Therefore it is of no avail. 508 The Sorts and Conditions of Men. [bk. ii. where and how could the line be drawn ? In form the Great Charter was a charter and between it and the mere gift of a single knight's fee there was a long and gently graduated series of charters granting 'liberties' of various kinds to individuals and to larger or smaller classes of men^ A claim to revoke what is in fact a body of general laws is one which will set men thinking, which may lead them in the end to some mystical dogma such as that the king is never under age ; but no such dogma has as yet been fashioned. The king of the thirteenth century is a natural person, and may be ' under disability.' Germs of a In course of time we see the beginnings of a doctrine of 'capaoi- public or official capacities. Lanfranc hints at it when he suggests that the Conqueror though he may not arrest the bishop of Bayeux may very lawfully arrest the earl of Kent^. Some progress has been made before the end of the thirteenth century. In a carefully worded judgment our king's court declares that the bishop of Durham ' has a double status, to wit, a temporal and a spiritual status.' The archbishop of York has excommunicated the bishop for imprisoning some of his metro- politan's men. But to imprison men belongs to the bishop's temporal status. Therefore the archbishop has excommunicated not his suffragan bishop but the king's tenant in chief and must pay a fine". A still more interesting case concerns King Edward himself He in his father's life time was holding the vill of Stamford and was exercising in it the franchise known as the return of writs. He granted the vill to the earl of Warenne. Having become king he demanded by what warrant the earl claimed the franchise. The earl replied 'By your own gift; you gave me all that you had in Stamford.' The kiiig's counsel then pleads that Edward himself had no title to the franchise and that being king he is bound to resume all rights unlawfully detached from the crown, even though he himself, while as yet no king, was the guilty person. 'He is now of another estate than he was then and is qioasi another person.' • This point will be further discussed in our next chapter where we deal with borough charters. " See above, p. 433. ' Bolls of Parliament, i. 102-5 : ' Episcopus Dunelmensis dupplicem habet statura, scilicet, temporalem et spiritualem, et ad statum ilium temporalem incaroerationes et imprisonamenta per ministros eiusdem Episcopi pertinent facienda.' CH. II. § 13.] Thti King and The Crown. 509 The earl combats this theory — ' He is one and the same person that he was when he made the gift.' Judgment is given for the king'. Thus the idea of dual personality may already prevail when the king wishes it to prevail. To enforce it when it would tell against his interests would be a harder task. And as yet this idea looks very new. If there is to be a personifi- cation, something material, something as visible as a church, must be personified. We can see the beginnings, but only the beginnings, of a Personi- process which personifies the king's ' crown.' And here it may the crown, be remarked that even in our own day this process has never gone so far as to modify the formal language of our law. Of course lawyers and judges and even statutes have now for a long time spoken of the rights of the crown, have spoken of the crown as doing this, that, and the other act. Still in the strictest language of the law, the language of pleadings, the crown does nothing ; it does not sue, it does not prosecute ; the king or queen does it all. A personification of the crown has been required not so much by any purely 'juristic necessities' as by constitutional doctrines which, though they may now-a- days be as well observed as any laws could be, are none the less no laws. Under the cover of the crown — that ' metaphor kept in the Tower,' as Tom Paine called it — our slow revolution is accomplishing itself. In the thirteenth century this golden circlet is beginning to be useful. We first hear talk of it when crimes are committed, not only against the king's peace, but also against ' his crown and dignity.' Then we hear of rights which are inseverably annexed to the crown ; they indeed make the crown, for the king's crown is to do justice and keep the peace ^. This is a pleasant doctrine for the king, if it is also a sound doctrine for the state ; it enables him to resume 'liberties' which have been alienated from the crown and check the growth of seignorial justice. In the fourteenth century it is possible to say that the crown, like a church, is always under ao-e and that no lapse of time will bar the demands of this 1 P. Q. W. 429-30. Thornton the king's counsel pleads that the king 'est alterius condioionis quam prius fuit et quasi altera persona.' The earl replies, ' Una et eadem persona est tam in statu regio quam in statu quo vooabatur oommuniter Dominus Edwardus' — King Edward is the same person as the Lord Edward of former times. 2 Braoton, f. 55 b : ' Est enim corona regis faoere iustitiam et indicium et tenere pacem, et sine quibus corona oonsistere non potest, nee tenere.' 510 The Sorts and Conditions of Men. [bk. ii. quasi infants But as yet to distinguish between the crown and the king, between the king and the man, is to teach a treasonable doctrine. In Edward II.'s day that doctrine be- comes prominent and charges of holding it are bandied to and fro. The barons who are leagued against one of the king's favourites. Piers Gaveston, are said to hold that allegiance is due rather to the crown than to the person of the king. A few years afterwards the barons who are leagued against another of the king's favourites, the younger Despenser, accuse him of having held this very doctrine, and owing to their success it becomes for all time, to use Coke's phrase, 'a damnable and damned opinion.' But all this lies in the future '. Retrospect. We are not contending that the proprietary theory of the kingship — if we may give that name to the doctrine which we have been endeavouring to expound — is the most ancient theory, or that it ever fully expresses all the facts and thoughts and feelings which determine what a king shall be and what a king shall do. No doubt there has been a one-sided develop- ment of those elements in the ancient ideas which have been found capable of legal treatment, while other elements have been forgotten or have been extruded from the sphere of law. No doubt also the Conquest of England, the strong monarchy, the tyranny (if we please to call it so) which was founded by the Norman kings, have favoured those and only those notions which exalt the king and give him a property in his kingdom. Still the phenomenon in question is no purely English one' and it can not be explained without reference to the history of jurisprudence. The elements in the old tribal kingship which survived in the struggle for existence were those which in the then state of legal thought were capable of being accurately expressed and defined. For vague thoughts, for half thoughts, the lawyer can find no place. What, for example, is he to make of a title to the crown which is partly hereditary, partly elective? The elective element can not be developed, for no one can define who are the electors, no one as yet has 1 Plaeit. Abbrev. p. 339 (15 Edw. II.): 'de iure coronae suae etc., quae semper est quasi minoris aetatis.' 2 Chronicles ol Edward I. and Edward II. ed. Stubbs, i. p. 153, ii. p. 33, 65 ; Statutes of the Bealm, i. 182; Calvin's Case, 7 Coke's Eep. 11; see also In re Stepney Election Petition, 17 Q. B. D. 54. ^ Gierke, Geuossenschaftsreoht, ii. 564-8. CH. II. § 13.] The King and The, Crown. 511 rules about the powers of majorities. Therefore the elective element must perish or become a mere form. And so with the king's lands. Either they belong to him or they belong to some other person or persons. Say for a moment that they belong to the nation, how can such a doctrine be enforced when as yet you have no idea, or but the vaguest idea of official capacities, of trusteeship, of corporations aggregate and corporations sole ? We do not wish to prejudge any debatable questions of early English history, but that men had clear ideas about these matters in the tenth century and lost them during the twelfth and thirteenth, those ages of brilliant intellectual progress, is not easily to be believed. The one general result to which we come at the end of this long and variegated chapter is that even in Bracton's day the number of legal ideas is very small and public law has hardly an idea of its own. CHAPTER III. JURISDICTION AND THE COMMUNITIES OF THE LAND. Place of In an exposition of any system of law, ancient or modern, a jurisdiction ^^''g© Space must be given to the composition and competence in the of courts. In a statement of modem law, however, we should medieval ...,„. _, ■ <■ i scheme. hardly place this topic m the forefront. Courts exist for the purpose of defining and enforcing the rules of substantive law, rules which can be explained without reference to the machinery of justice. But when dealing with the middle ages we can not thus regard what we may call the 'law of jurisdiction' as merely subsidiary or 'adjective.' It is intertwined with the law of property and the law of personal status and this in many different ways. In the first place, jurisdiction is a proprietary right, or rather the subject matter of proprietary rights, profit- able, alienable, inheritable rights, which are often bound up with the tenure of land. In the second place, jurisdiction is one of the main ties which keeps society together ; the man is bound to his lord by this as well as other bonds; he is not merely his lord's man and his lord's tenant, but he is also his lord's 'justiciable '; his lord is his ' sovereign'; he owes to his lord not merely service but also suit ; and thus once more the law of jurisdiction is implicated with the land law'. Turning again to the masses of unfree men we see yet another con- nexion between jurisdiction and ownership. If we examine the rights of the lord over his villein we find it difficult to decide where ownership leaves off and where jurisdiction begins; we may have to say, either that the idea of ownership, the 1 Y. B. 18 Edw. II. f. 571: 'le Priour fuit son justisable.' Stat. 28 Edw. ni. i;. 11 : ' celui qe est sovereign de la viUe.' CH. Ill,] Jurisdiction and Communal Affairs. 513 master's ownership of the slave, has been tempered by the idea of jurisdiction, or that rights of jurisdiction are being converted into rights of ownership. Again, we have to form the notion of different spheres of jurisdiction and this must colour the whole of our treatment of important private rights. It is not enough to say that a man has a right in land : we must add that it is, or is not, a right protected by the king's courts, for although it may be unprotected there, still it may be protected by other courts, for example by the court of the manor. The history of villein tenure requires us to remember this; a right valid in one sphere of jurisdiction may have no existence in another sphere. Nor is this the result of a mere division of labour between various courts such as at the present day may send petty cases to petty tribunals. The various courts have their roots in various principles, in various rights, the rights of the king, of the church, of feudal lords, of ancient communities. Lastly, we have been compelled to break off our discussion of the 'land communities,' as we have called them, because we could not describe their organization without speaking at some length of courts, their constitution and competence. In the main the organization, the very essence, of these communities is justiciary; the shire has a court, the hundred a court, the manor a court, the borough a court, and it is this which makes the shire, the hundred, the manor, the borough to be a communitas. Thus in speaking of jurisdiction we shall naturally be led to describe the nature of these communities and to consider why some of them are, while others of them are not, attaining a fictitious personality. If we leave out of sight the courts of the church and con- The centrate our attention upon secular justice, we seem to see at thS'aU* first sight a certain theoretical unity. Who, asks Bracton, temporal ought to be judge in temporal causes ? The king ; no one else : proceeds — this is the meaning of the kingship, that the king should do ting, justice to all. It is mere want of time and strength that authorizes and compels him to depute his duties to others. All temporal judges are his delegates'. But Bracton was a royal justice and, though he could easily show that he and his fellows derived their authority from the king, and were in a very true sense his servants and deputies, he does not attempt to prove, and could hardly have succeeded in proving, that, ■ Bracton, f. 107-8. P. M. 33 514 Jurisdiction and Communal Affairs, [bk. ii. even in legal theory, all the jurisdictional powers of the feudal lords were delegated to them by the king. The law of his time is obliged to distinguish the ' regalities ' that ar^ delegated from the powers that have another origin. Easier would it have been to show that as a mere matter of fact, despite all theories, despite the words of the Great Charter, the king's court was mastering all the justice of the land, was subordinating to itself the feudal courts, was making them insignificant ; but in so doing some startling contrasts between facts and theories would have been disclosed. Even the ancient courts of the shire and the hundred, courts which had no lords, courts which were presided over by royal ofiicers, might have occasioned doubts: — could the suitors who made the judgments in these courts be called the king's deputies ? Bracton takes the easiest of all courses, that of ignoring difficulties ; he asserts the broad principle that all temporal jurisdiction is the king's, and leaves us to discover how far either facts or legal theories can be brought under this principle. Still of course the assertion is very important ; the principle is not the mere speculation of a lawyer ; it has been making itself good as against other prin- ciples which in part were older, 'in part were newer, making itself good against tribalism, communalism, feudalism. Scheme of It is not, however, with a discussion of this dogma that all ecoura. . oj,(jijja,ry,' i.e. non-delegated, jurisdiction is in the king' that we can begin our investigation. We must look at the courts as they exist at the close of Henry III.'s reign, prefacing any further remarks by a summary statement, which may show the main outlines of the system though it will neglect exceptional and anomalous cases. Division of For the purposes of temporal justice England is divided the land. -^^^^ counties; the county is divided into hundreds; the hundred is divided into vills or townships". The county has a court, the hundred has a court, the vill or township has as such no court ; but the township is an important unit in the adminis- tration of the law. Again, the township is very often coincident . with a manor and the manor has a court. 1 Bracton, f. 108 : ' Dictum est in proximo de ordinaria iurisdiotione quae pertinet ad regem, consequenter dicendum est de iurisdiotione delegata.' 2 This is not strictly true, for the vill may well extend into two or three hundreds and into two counties. For some examples see Committee on Parish Boundaries, Pari. Pap. 1873, vol. 8, p. 225, CH. III.] Jurisdiction and Communal Affairs. 515 The county court meets once a month. It is presided over The county by a royal officer, the sheriff, who in some matters is assisted "^ and checked by elective officers, the coroners. It is attended by suitors (sectatores), certain freeholders of the shire who are bound to attend it, to do suit (facere sectam) to it. They are the judges or doomsmen (iudicatores) of the court. As a court of law it entertains some of the initial proceedings in criminal cases, but for the more part it is now a civil, non-criminal court ; it has an original jurisdiction in personal actions ; real actions come to it when the feudal courts make default in justice ; cases are sent down to it for trial by jury from the king's court. The hundred court meets once in three weeks. Normally The its president should be the sheriff or a bailiff to whom the cX^;!* sheriff has committed the hundred ; but many of the hundred courts are in private hands, and when this is so the lord's steward presides. A number of the freeholders of the hundred owe suit to it; these suitors are the doomsmen. Its competence seems much the same as that of the county court, though its powers are confined within narrower geographical limits; but real actions do not come to it, nor do we hear of actions being transmitted to it by the king's court. Twice a year the sheriff makes a tour or turn (twrnus vice- The comitis) through all the hundreds of the county. He holds j„^ ^ each of the hundred courts and on these occasions many persons besides the ordinary suitors ought to be present. One of his objects is to hold a view of frank-pledge (visus franciplegii), to see that all persons who ought to be, are in a tithing. For this purpose strict law might require that all such persons should be present, but often they seem to be sufficiently represented by the chief pledges (capitales plegii), the heads of their tithings, the tithingmen (decennarii). The curious organ- ization of frank-pledge is interlaced with the organization of townships and of manors, and the townships also have to be represented at the sheriff's turn each by its reeve and four of its men ; for another object of the turn is that the sheriff may hold what we may call a 'police court.' Presentments respecting crimes and minor offences are there made by the representatives of the townships and a jury of freeholders. The presentments of minor offences are disposed of on the spot ; presentments of crimes merely serve to initiate proceedings against the accused 33—2 516 Jurisdiction and Communal Affairs, [bk. ii. Seignorial courts. Feudal courts. Franchise courts. who will be tried by the king's justices. In his 'turn' the sheriff acts as a judge with powers delegated from the king, and seemingly the suitors of the hundred have nothing to do with the judgments. This we may say is the national system of local courts and these courts for want of a better title we may call ' communal ' — thereby meaning that the court represents, though it is not elected by, a comrmmitas. From them we have to distinguish courts which in a wide sense of the word we might call feudal, but which it may be better to call seignorial ; they are courts which have lords. These seignorial courts do not form a system comprising the whole land, but are dotted about sporadically. We must divide their powers into two classes. It would seem that the mere fact that a man had tenants gave him a right to hold a court of and for his tenants. A court authorized by this principle, which we may call the feudal principle, would have, at least over the freehold tenants, but a purely civil, that is, non-criminal, non-penal, jurisdiction; it would be competent for personal actions and also for real actions in which freehold lands were demanded ; but the latter could only be begun by a royal writ {breve de recto tenendo) and might easily be removed from it by a similar mandate. Over 'unfree persons and unfree tenements its authority would be more ample; about the title to lands held in villeinage it would be able to say the last word, it could enforce the manorial custom and inflict minor punishments upon the villeins. Probably there was nothing in law to prevent a lord standing high in the feudal scale from holding a single court for all his tenants, and occasionally we read of the court of a wide-spread honour. Usually, however, the lord's court is the court of a single manor and very frequently the manor is a single vill. The legal theory of later times distinguished between the court for freeholders and the court for customary tenants, calling the former a court baron, the latter a cmtomary court; in the court baron, it is said, the freehold suitors (sectatores) were the judges ; in the customary court the lord's steward was the only judge ; but it is very doubtful whether we can carry back this distinction into the age of which we are now speaking. Contrasted with the jurisdictional powers which a lord has merely because he is a lord with tenants, stand the franchises, CH. HI. J Jurisdiction and Communal Affairs. 517 liberties, royalties (libertates, regalia), powers and immunities which according to the law of the king's courts can only be possessed by those to whom the king has granted them. These franchises were of the most various kinds and orders, ranging from the powers of the palatine earl to those of the lord of a petty manor who had merely the view of frank-pledge and the police jurisdiction that was incident to it. This last franchise was extremely common and the court in which the lord exer- cised it twice a year was acquiring the name of a leet (leta) ; it Leets. was a police court for the presentment of offences and for the punishment of minor offences; it was co-ordinate with the sheriff's turn. Sometimes the lord had yet higher justice in his hands and might hang thieves taken in the act of theft; and thus gradually we ascend the scale of ' royalties ' which leads up to the palatine earldoms. The cities and boroughs — vills, that is, which have attained Borough a certain degree of organization and independence — have courts of their own. But of these municipal courts very little can be said in general terms ; they are the outcome not of laws but of privileges. Above all other courts rises the king's court, which has The king's gradually been dividing itself into three permanent courts, the "°"'^'' King's Bench, the Common Bench, the Exchequer. But besides these permanent central forms, it constantly assumes temporary and local forms. Royal justices are sent into the counties under divers commissions ; it may be to take the assizes (possessory actions) of the county, it may be to deliver the gaol of the county, it may be as justices in eyre (in itinere) to hold all the pleas of the county, civil and criminal. In this last case the justices preside over a very full, solemn and prolonged meeting of the county court. In one way and another, now by the evocation of causes, now by the invention of new actions, the king's courts are not merely reducing all other courts into subordination, but are making them petty courts, courts for the smaller affairs of the smaller folk. Such being the main outlines, we may endeavour to fill in certain parts of the picture avoiding much repetition of those matters which have been sufficiently discussed by historians of the English constitution. 518 Jurisdiction and Communal Affairs, [bk. ii- § 1. The County. The Of the origin of the various counties we shall therefore say ™"" ^' nothing^ ; but there is one phenomenon which deserves a few words, namely, the 'detached part of a county.' The map of England has never shown such striking examples of dissipated counties as those displayed by the map of Scotland ; still the total number of cases in which a county has had outlying members is by no means small". For example, Worcestershire had several islands scattered about in Gloucestershire, War- wickshire, Oxfordshire, Staffordshire, Shropshire, Herefordshire. It seems certain that many of these anomalies are due to very ancient causes; possibly in a few cases they take us back to the days of intertribal warfare; more probably they illustrate the very ancient connexion between property and jurisdiction. The lord of a hundred in one shire had an estate lying in another shire ; he had jurisdiction over both ; he obliged all his men to attend his hundred court; such a proceeding may or may not have been warranted by some royal charter. Thus Domesday Book includes in Worcestershire islands which are surrounded by other counties. These islands belong to the hundred of Oswaldslaw, which belongs to the church of Wor- cester and perhaps gets its name from Oswald bishop of that church; but then these islands themselves belong, in a some- what different sense, to the same church ; the church is lord of the land, lord also of the hundredal jurisdiction. These ' detached portions of counties ' seem to bring before our eyes the struggle between national justice and private justice; their small significance in English history and their rapid descent into the category of petty nuisances show how that struggle was decided. The outlying portions of the Durham palatinate, Norhamshire, Islandshire, Bedlingtonshire, Craikshire, were probably the most important'. The Of the county officers again we need say but very little county •' ' See Stubbs, Const. Hist. i. 122. 2 A great deal of information may be gained from Schedule M to the Statute 2-3 Will. IV. 0. 64. 3 In 1269 the under-sheriff of StafEordshire is charged with taking a viU out of one hundred to put it in another hundred which he farmed in fee j StafEord- shire Collections (Salt Soo.) iv. 170. officers. CH. III. § 1.] The County. 519 since constitutional history has taken them under her pro- tection. The earl, except in the case of the palatine earldoms, has little to do with the government of the county which gives him his title ; even before the beginning of legal memory he has, we may say, nothing to do with the county, save to be girt with its sword, and to receive a third of its ancient revenue, 'the third penny of the county^.' On the other hand the sheriff, who despite the fact that in Latin he is vicecomes and in French le viscount has never been the vice-gerent of the earl, is the governor of the shire, the captain of its forces, the president of its court, a distinctively royal officer, appointed by the king, dismissible at a moment's notice, strictly accountable to the king's Exchequer''. A danger that sheriffdoms would become hereditary offices has been surmounted ; at the end of the thirteenth century a danger (if such we think it) that sheriffdoms will become elective offices is being surmounted in spite of popular demands which gradually die out, and pious forgeries which long trouble the stream of legal history'. Already before the beginning of the thirteenth century the sheriff is losing some of his powers ; before the end we see the first germs of an institution which is destined to grow at his expense, the knights assigned to keep the peace of the county whose successors will be justices of the peace. But the sheriff of this century, still more the sheriff of the twelfth, is a great man with most miscellaneous functions, military and financial, executive aud judicial. Below him in rank and of far more recent origin stand the coroners, or, to give them their full title, the keepers of the pleas of the crown {custodes plaoitorum coronae). Normally the county has four coroners who are elected by the county in the county court. Their origin is traced to an ordinance of 1194. The function implied by their title is that of keeping (custodire) as distinguished from that of 1 Stubbs, Const. Hist. i. 389-394 ; Bound, Geoffrey de Mandeville, 287. 2 The continued use of the English title sheriff might be sufficiently proved by its reappearance on the surface of legal history in later days ; but even in the thirteenth century we hear of local exactions which are known as shirreves welcome, scirrewescot, chiryveschot, i.e. auxilium vicecomitis ; E. H. i. 157, 454, 484. 3 Reference is here made to the chapter De heretoehiis (Schmid cap. 32 a) interpolated into some copies of the Leges Edwardi Confessoris. As to heredi- tary sheriffs, see Stubbs, Const. Hist. i. 295 ; as to elective sheriffs, ibid. ii. 206-8. 520 Jurisdiction and Communal Affairs, [bk. ii. holding (tenere) the pleas of the crown ; they are not to hear and determine causes, but are to keep record of all that goes on in the county and in any way concerns the administration of criminal justice, and more particularly must they guard the revenues which will come to the king if such justice be duly done'. The The ' county ' is not a mere stretch of land, a governmental com- district; it is an organized body of men; it is a communitas. mum y. -^^ must stop short of saying that it is a corporation. The idea of a corporation is being evolved but slowly, and our shires never become corporations, so that in later days the term ' county corporate ' is employed to distinguish certain municipal boroughs which have been endowed with the organization of counties from the ordinary shires or ' counties at large.' With such ' counties corporate ' we have not to deal ; they belong to another age. But attending only to the ' counties at large ' we notice that the law and the language of our period seem at first sight to treat them very much as though they were corporations and in this respect to draw no hard line between them and the chartered towns ; the borough is a communitas, so is the county. It would even seem that under Edward I. the county of Devon had a common seal*. This may have been an exceptional manifestation of communal unity; but John had granted to Cornwall and to Devonshire charters which in point of form differed little from those that he granted to boroughs : — if a grant of liberties might be made to the men of a town and their heirs, so also a grant of liberties, a grant of freedom from forestal exactions, a grant of the right to elect a sheriff, might be made to the men of a county and their heirs'. But the county was apt to find its communal unity brought 1 Stubbs, Const. Hiat. i. 505. Though we see no reason to doubt the established doctrine that the general institution of coroners is due to the measure of 1194, still the office of keeping the pleas of the crown seems to have been known at an earlier time. In the Pipe Boll of 31 Hen. I. , p. 91, we read that Benjamin (probably » Jew) accounts for £4. 5s. that he may keep the pleas which pertain to the king's crown. See also Gross, Early History of the Office of the Coroner, New York, 1892, an excellent essay. 2 Calendarium Genealogicum, p. 487 ; a lady ends a document with these words ' In cuius rei testimonium sigillum meum praesentibus apposui, et quia sigiUum meum est incognitum sigillum comitatus Devoniae apponi procuravi.' » Rot. Cart. 122, 132. Eot. CI. i. 457 ; ii. 25, 169. Henry XL. by charter granted to the men of Derbyshire that their county court should be held at Derby instead of at Nottingham. CH. HI. § 1.] The County. 521 home to it in the form of liabilities rather than in the form of rights. The county was punished, was fined and amerced, for the mistakes and misdoings of its representative assembly, the county court'. In the language of the time this proposition that the The county must answer for the acts and defaults of the county court.^ court appears as a mere truism, for it can only be expressed by saying that the county must answer for the acts and defaults of the county. County and county court are so thoroughly one that the same word stands for both. Karely, if ever, do we meet with any such term as curia comitatus or curia de comitatu ; the assembly is the comitatus, and every session of the assembly is a comitatus ; for example, when a man is to be outlawed a procla- mation commanding him to present himself must be made ' in five successive counties,' that is at five successive sessions of the county court. The actual assembly of men sitting at a certain time and place to hear causes, is the county; the permanent institution of which that particular assembly is, as it were, a fleeting representation, is the county; the county again is a tract of ground ; the county is the whole body of persons who hold lands or reside within that tract, whether they participate in the doings of the representative assembly or no. And so with the word shire, which is maintaining its ground alongside county even in the language of the law ; if an abbot and his tenants are to be freed from the duty of attending the county court there is no need to use so long a phrase, it is quite enough to say that they are to be ' quit of all shires ' (quieti ah omnibus schiris). What we say of the county is true also of the hundred ; our law Latin has no such term as ' the court of the hundred ' ; the ' hundred ' is a district, a body of landholders and residents, a court, the session of a court. This absolute identity of the county and its court might be Identity of abundantly illustrated from the rolls which describe the pro- county ceedings of the king's justices in eyre. They come into the '""^'" county; the whole county is convened to meet them; the ' It will be remembered that to this day the county ia an indictable unit though no corporation. The difficulty occasioned by the fact that the county could not hold land was met by a statute of 1858 (21 and 22 Vic. c. 92), which provided for lands being held by the clerk of the peace. At a much earlier time we find the judges puzzled by the question how damages under the Statute of Winchester can be recovered from the county; Y. B. Pasch. 17 Edw. II. f. 539. 522 Jurisdiction and Communal Affairs, [bk. il. county gives evidence, answers questions,- records- its customs, expresses its suspicions, is believed or disbelieved, is punished. Thus, to choose but one example, the justices visit Lincolnshire in 1202 ; the county gives one account of proceedings which took place in the county, the coroners' rolls give another account; the testimony of the latter is treated as conclusive; the justices therefore are on the point of fining or amercing the county, but the county forestalls their judgment by offering a sum of £200 to be paid by the county, save such parts of it as enjoy a chartered or prescriptive immunity from such finest But not merely is the county thus visited in its home ; it has constantly to appear in the king's court at Westminster and answer touching its misdeeds, in particular the miscarriages of justice which have taken place in its court. A writ of false judgment (defalso iudicio) is brought against the county; thereby the sheriff is directed to ' record ' the proceedings that "have taken place in the county, that is, to cause those proceedings to be recited or recapitulated in the county court, and then to send four knights to bean the ' record,' written or unwritten, to Westminster. The knights come there; they bear record, or rather the county bears record through their mouths, for what they say the county says. The complainant disputes this record and offers battle ; the county maintains the truth of its record and offers to prove it by the body of a freeman of the county, who — so we fear — is no better than a hired champion^. The county must pay for its false judgments', tion of'the '^^^ Constitution of the body which thus represented, and county indeed was, the county has before now been the theme of sharp controversies* ; but it has usually been discussed in its relation to the history of parliament. Two opinions have prevailed ; some would make the county court an assembly of all the freeholders of the shire, others would make it an assembly of the tenants in chief. Both of these theories have the merit of being simple ; but they have the demerit of being too simple 1 Select Pleas of the Crown, i. pi. 38. This volume contains many other illustrations of the same principle. See also Madox, Exch. i. 567. 2 Note Book, pi. 40, 212, 243, 445, 955, 1019, 1130, 1412, 1436, 1672, 1730. Observe in pi. 1019 ' Et comitatus hoc defendit praeoise,' and in pi. 1412 ' Et comitatus dicit quod tale fuit recordum.' ' Madox, Exch. i. 556 (31 Hen. III.); the whole county of Norfolk owes £11 for a false judgment. * See Stubbs, Const. Hist. ii. 208-232. court. CH. III. § l.J The County. 523 to meet the facts which are disclosed by documents of the thirteenth century. Of the county court as it was at that time we will first speak, and this done we may be the better able to understand the sparse evidence that comes to us from an earlier age*. And first we must notice that of any right of attending the Suit of county court we read no word. Of the duty of attending it we right but a read much, and obviously this duty was regarded as onerous ''"^'^*"- and irksotne. Men seek for royal charters which shall absolve them from it and such charters they obtain. In the twelfth century immunities of this kind were frequently granted to religious houses and occasionally to laymen, and, at least in some cases, not merely the grantees themselves but all their tenants were delivered from the burden of doing suit to the communal courts I Precise calculations about such a matter are impossible ; it must suffice therefore to say that before the beginning of Edward I.'s reign very large tracts of England enjoyed a chartered liberty from this burden. To chartered liberties we must add prescriptive liberties ; to immunities that were legally valid we must add immunities that were actually enjoyed. Prelates and barons ' subtracted the suit ' — such was the phrase — due from themselves and their tenants whenever they saw an opportunity of doing this with impunity, and a long continued subtraction would ripen into a lawful franchise. Nor is this cause for surprise. For a moment let us try to Suit of picture to ourselves the position of some petty freeholder latorious. whose lands lie on the north coast of Devon. Once a month he must attend the county court ; once a month, that is, he must toil to Exeter, and we can not always allow him a horse. ' Maitland, The Suitors of the County Court, Engl. Hist. Bev. iii. 418. 2 In some eases it is quite clear that the immunity excuses not only the grantee himself but also his tenants from suit of court ; in other cases this is left in some doubt. The following forms which occur in John's charters may illustrate this point : — Concedimus quod ipsi et homines sui liberi sint ab omnibus schiris et hundredis — Praecipimusquod praefati canonici quieti sint de sectis syra- rum et hundredorum — Concedimus eis ut teneant terras suas quietas et liberas de sectis sohirarum et hundredorum — Volumus quod moniales et homines et ministri et servientes earum habeant et teneant omues possessiones suas quietas et liberas de schiris et hundredis. It may well be argued that if a lord purchased immunity from suit for ' all his lands,' this discharged his tenants from suit, even though the charter made no express mention of his homines. In Edward in.'s day we find the king's advocates asserting that in this context homines will only cover unfree tenants ; P. Q. W. 133, 186, 144. 524 Jurisdiction and Communal Affairs, [bk. ii. Even if the court gets through its business in one day, he will be away from home for a week at least and his journeyings and sojoumings will be at his own cost. When he returns he will have to remember that the hundred court meets once in three weeks, the manorial court once in three weeks, and that he owes suit to both of them. Is it credible that all freeholders discharge these duties ? Sessions of In Henry IIL's reign the county court is usually holden once a month. The third edition of Magna Carta, that of 1217, says that it is not to be holden oftener, but adds that in counties in which it has not sat so freq-uently as once a month the old rule is to prevail^. The Lincolnshire court met every forty days^; but monthly sessions seem to have been usual elsewhere ; in 1219 the county of Surrey was amerced for holding more frequent sessions'. As to the hundred court a royal ordinance of 1234 declared that it was to meet but once in three weeks^. We thus learn that before 1217 the county courts had sometimes been holden at intervals of less than a month, while the ordinance of 1234 expressly tells us that in Henry II.'s day the hundred courts and baronial courts had sat once a fortnight. It is difficult to make these tidings fit into a consistent story with our earlier evidence. A law of Edward the Elder had said in general terms that every reeve is to have a moot in every four weeks^ Edgar commanded that the hundreds were to meet once a month^; elsewhere he adds that the burghmoot shall be held three times a year, the shiremoot twice'. This last rule is repeated by Cnut with the qualification that the moots are to be held oftener if need be*. Henry I. ordains that the counties and hundreds are to sit as they did in the Confessor's day and not otherwise ; if more frequent sessions are required for any royal business they will be summoned". An exposition of this ordinance, which seems to be the work of a contemporary, declares it to mean that the shiremoot and ^ Charter of 1217, cap. 42 : ' NuUus. comitatus de cetero teneatur nisi de mense in mensem, et ubi maior terminus esse solebat, maior sit.' " Note Book, pi. 1730 : ' Comitatus Lincolniae semper solet sedere de xl. diebus in xl. dies.' 3 Note Book,- pi. 40. ^ Statutes, i. 118 ; Ann. Dunstap. p. 139. 6 Edward ii. 8. « Edgar i. 1. ' Edgar m. 5. « Cnut ii. 18. " Writ in Select Charters ; Liebermann, Quadripartitus, 165. CH. III. § I. J The County. 525 burghmoot are to be held twice, the hundredmoot twelve times a year, seven days' notice being given unless royal business demands a departure from this rule. To these assemblies are to come all the lords of lands. Twice a year however a specially full hundred court (the sheriff's turn of later days) is to be held, at which all the free men {liheri) are to be present, whether they be householders or dependants, in order that the tithings may be examined and found full^ To this exposition we must return ; for the moment we have only to notice that the county court is to all seeming held but twice in the year. How to reconcile this with the state of things existing a century later and presupposed by the Charter of 1217 is a difficult question : — a court that was holden but twice is now holden twelve times a year or yet more frequently. Has the burden of suit of court been multiplied six fold ? Now that a court with much judicial business of an ordin- Full courts ary kind will sit but twice a year we can hardly believe, mediate Medieval procedure required that a suit should come before "''" ^' the court on many occasions before a judgment could be given. The parties must appear in person, not by attorney ; roads are bad ; simple justice requires that a defendant should have ample opportunity of appearing before he is treated as contu- macious^. According to the law of the thirteenth century no man could be outlawed until he was quinto exactus, that is until his appearance Ijad been demanded in five successive county courts. If we suppose that the court sat but once in six months then the process of outlawry, which we may well suppose to be very ancient, could not be accomplished in less than two years and a half. We can hardly avoid one of two suppositions and 1 Leg. Henr. 7, 8, 51, §2. 2 In an action for land in a local court, the person in possession was often allowed ' three summonses, three defaults and three essoins before appearance ' (Select Pleas in Manorial Courts, i. 107, 112 — 120) so that if the court sat but twice a year he would have some four years before the day for answering the demandant would arrive. The MS. Book of Cerne in Camb. Univ. Libr. tells of a suit between the Abbot of Cerne and the Prior of St Swithin's which has come before ten successive county courts and yet seems far from a judgment. It is not very probable that the number of 'summonses, defaults and essoins' was smaller in ancient than it was in comparatively modern times. 3 Bracton, f. 125 b. This rule which required that the outlawry should not take place until the fifth, or according to another mode of reckoning the fourth, county court, is recognized in a case of 1221 . Select Pleas of the Crown, vol. i. pi. 129. So also there is constant mention in the A.-S. dooms of the voucher of 526 Jurisdiction and Communal Affairs, [bk. ii. perhaps both should be combined, namely, that in the days before the Conquest the shire-moot had done but little of the ordinary judicial work, this being usually disposed of by the hundred courts, and secondly that between the solemn half- yearly meetings of the county court, at which all the suitors were required to be present, there intervened less solemn meetings attended only by a smaller group of suitors before whom the formal and preliminary steps in litigation, the 'interlocutory proceedings' as we now should call them, could be taken. This latter theory is supported by numerous entries upon the Hundred Kolls. Just as there are many men who owe suit to the two half-yearly meetings of the hundred court which are now known as the sheriff's turns but owe no suit to the intervening sessions, so, at least in certain shires, the suitors of the county court fall into two great classes ; many are bound to go month by month, while many others are bound to •go but twice a year; they go to two meetings which are distinguished as 'the great counties' or 'the general counties \' •The suitors of the manorial courts fall into two similar classes ; some must appear every three weeks, others but twice a year^. The But •whichever of these two classes of suitors we examine, we can not say that it is constituted either by ail the freeholders of the shire or merely by the tenants in chief. A more complex idea must be introduced, but one which will not be unfamiliar to us after what we have seen of scutage. Suit to the county and hundred is a burden incumbent on land. It has taken root in particular acres of land. Feoffments and private bargains can not shift that burden from the land, nor will they increase successive warrantors, and each voucher must have involved at least one adjournment. 1 See e.g. the account of Oxfordshire, E. H. ii. 835-877; of many of the landowners it is said ' facit duos adventus ad magnos comitatus Ozoniae,' or ' facit bis sectam ad duos magnos comitatus Oxoniae.' So in Yorkshire ; ' facere solebant unum adventum singulis annis ad generalem comitatum Eboraci'; P. Q. W. 217. ^ The difficulty noticed in this paragraph is discussed by Stubbs, Const. Hist. i. 649. All that we can add to his explanations is the fact that long after 1217 two half-yearly meetings of the county court are distinguished as 'the great counties ' from the ordinary monthly meetings, and the suggestion that, though the Leges Henriei speak only of the great half-yearly meetings, there may also have been monthly meetings attended only by a small body of suitors. The history of the Frankish courts supplies us with some analogies ; see Schroder, D. B. G., pp. 160-9. CH. III. § l.j The County. 527 the number of suits that are due ; but as between the various persons interested in that land they can and will determine Suit k a who is to do the suit. We will suppose that A holds a tract of burden. land for which he owes a suit to the county ; he enfeoffs B, G and D with parcels of that land. One suit and no more is due from that land. Probably as regards the king and his sheriff all four persons are liable for that suit ; all or any of them can be attacked if the suit be not done; but as between them- selves the terms of the feoffments decide which of them ought to do it. We may be pardoned for spending some little time over this doctrine, for it illustrates the complicated texture of medieval society and the large liberty that men enjoyed of regulating by private bargains what we rnight deem matters of public law. And in the first place we shall notice that suit to the communal courts is often spoken of as the whole or part of the service by which a man holds his land ; it is mentioned in the same breath with suit to the lord's court, rent and scutage^ A man may hold his land by the service of finding one doomsman for the hundred court, or may hold it for 9s. 2|rf. and half a doomsman^ Then again we find such cases as the following. In the vill of Bottisham the Earl of Gloucester has some forty freehold tenants; two of them do suit to the hundred and county courts for the earl and the whole township'. The Abbot of Ramsey has a manor at Burwell: the jurors do riot know that he does any service for it except two suits to every county court; but these two are actually done for him by two particular tenants of his ; J. A. holds a hide and does one suit, B. B. holds ninety acres and does the other. Any number of similar instances might be found. A particularly clear case is found on the Ramsey manor of Cranfield; there are four 1 B. H. if. 483 : ' W. G. holds two virgatea of the Abbot of Bamsey. For one virgate he does suit to the county of Cambridge and the hundred and pays 12d. towards the sheriff's aid. For the other virgate he pays 5s. a year to the Abbot and does suit to the Abbot's court at Broughton.' Y. B. Trin. 7 Bdw. II. f. 243 : 'Your predecessor enfeoffed William of the one virgate to hold by homage, fealty, three shillings a year and suit to his court, and for the other virgate, to do suit to the hundred of A. and the county of Hertford for the vill of L.' 2 Testa de Nevill, 404-5. The word translated as doomsman is index, instead of which index is too frequently printed. s R. H. ii, 488, 528 Jurisdiction and Communal Affairs [bk. ii. virgates which pay no rent because they do suit to the county and the hundred for the whole township^. As regards suit to the hundred court we have yet more explicit tidings. The opinion of the jlirors from whose verdicts the Hundred Rolls were compiled was distinctly this, that suit was a burden on particular tenements, a burden not to be increased by any subdivision of those tenements. They complain that the Earl of Surrey who holds the hundred of Gallow has not observed this rule. There was, for instance, a tenement in South Creake containing 100 acres; it owed a single suit; it has been divided into 40 tenements and 40 suits are exacted^. And so again if the tenement becomes partible among coheiresses, the number of suits, at least in the jurors' opinion, should not be increased ; the burden should lie on the share of the eldest sister^ ' Reality' Once more, the king has to set the law in motion against someone who has 'subtracted his suit.' Now were this duty incumbent on all freeholders, nothing would be simpler than the king's case; he would merely have to say 'You are a freeholder of the county and you are not doing suit.' But the king's advocates do not adopt this easy course ; they make it a matter of seisin. The king demands a suit because he has, or his ancestors have, been seised of a suit done by the defendant or his predecessors in title. King Edward I. demands a suit to the hundred court from the Earl of Norfolk and relies on the seisin of King Henry III. The Earl comes and denies the king's right and the seisin of King Henry and puts himself upon a jury as to whether he has better right to hold the lands in question without doing suit than the king has to demand a suit. The jury give the Earl a verdict and he goes quit*. If the mere fact that the Earl was a freeholder would have made him liable to do suit, the king's counsel sadly mismanaged their case. This is but one example from among many. ' Cart. Earns, i. 438-9. In P. Q. W. 780 is a curious case which seems to have been spoilt by a transcriber's error. Roger of Sumery holds eight vills and claims to be quit of suit to county and hundred per Eedfinchton suuvi. The jurors say that three rudmanni do suit in turn for all these vills save one ; the freeholders of that one do the suit in person. Probably instead of the unin- telligible phrase we should read per Rodchnichtos suos or something of the same kind. The suit for the seven vills is done by three radchenistres, rademanni. ^ E. H. i. 455. See also as to the hundred of Humbleyard, ibid. 471. 3 E. H. i. 498. * P. Q. W. 730. CH. III. § l.j The County. 529 Now all this seems inconsistent with the notion that a The viU freeholder as such owes suit. Somehow or another the coui-t, owing unit, or the king — for it is in the king's name that the duty must be enforced — has become entitled to a fixed number of suits, each of which suits is incumbent on a certain tract of land. What- ever transactions take place in relation to any of these tracts, it will still owe a suit but it will owe no more. Of the size and nature of these suit-owing tracts our evidence only permits us to say that there is no uniformity, and that very often a whole vill or manor is represented by a single suitor. It would seem that even ' the great counties ' or ' general counties ' were not very large assemblies, while the court which met once a month was, at least in some shires, much smaller. Possibly different opinions as to the nature of the obligation had prevailed in different counties. In Yorkshire, for example, where suits exigible from all freeholders would have been an intolerable burden, the usual attendants at the county court seem to be the stewards of the tenants in chief. But in general the assembly was formed out of very miscellaneous elements ; there were tenants by military service and socage tenants, tenants in chief of the king and tenants of mesne lords, great men and small men ; many of them were knights, the predecessors of the country gentlemen who for centuries to come will do justice and manage the county business because they like the work ; but there were also yeomen, holders of but a virgate or so apiece, who went there because they were bound to go by their tenure ; they pay little or no rent because they discharge a duty which otherwise would fall upon their lords. At the same time we must not credit the men of the Incon- thirteenth century with a thoroughly consistent doctrine as theories of to the 'real' character of the dutyl There is a conflict of™'*' ^ Thus Baldwin Wake holds a, manor of Nicholas de Meynill who holds of Peter de Maulay ; Peter does suit to the county of York by his steward for all his tenants ; therefore none is due from Baldwin ; P. Q. W. 199. In the fifteenth century the stewards of the great lords seem to have been the electors for the county of York. See Stubbs, Const. Hist., iii. 411, as to the peculiar character of the Yorkshire elections. ^ It may be necessary to warn the reader that the ' suit real ' of old books, which is contrasted with ' suit service,' suggests a falsehood to us moderns. The word ' real ' in this context means ' royal,' and an attempt was made at times to prevent this ' suit royal ' from becoming ' real ' in the sense in which we use that word. See Y. B. 33-5 Edw. I. p. 91. P. M. 34 530 Jurisdiction and Communal Affairs, [bk. ii. interests and therefore a clash of theories. In 1258 when the Barons' War was at hand there was an outcry about suit of court; new-fangled suits are exacted as well to counties and hundreds as to franchise courts'. The provision made in answer to this outcry, a provision which was subsequently embodied in the Statute of Marlborough, spoke only of suits due to the courts of the magnates and other lords and does not seem to touch the county courts or such of the hundred courts as were not in private hands'. Among other points it decides that when a tenement which owes a suit descends to coheirs or is divided by feoffment no more than one suit is to be due. This may well be the decision of a question that had been open, and we find that the converse case had been debatable. If a division of the tenement does not increase the number of suits that are due, the union of several tenements, we might argue, ought not to decrease that number. But we find it otherwise decided, ' for it is not consonant to law that when two inheritances descend to one heir, or when one person acquires divers tenements, more suits than one should be due for these several inheritances or tenements to one and the same court^.' 'Reality' and 'personality,' if we may so speak, are contending for the mastery, and the result which emerges after the days of Lewes and Evesham seems very favourable to the general body of freeholders. When a tenement is divided, the suit is considered as annexed to the land ; when two tenements meet, it is deemed a personal duty. It is not impossible that earlj^ in the fourteenth century the attempt to compel reluctant suitors to attend the county court was already being abandoned. In the other local courts it was usual to receive and enrol the ' essoins,' that is the excuses for non-attendance, of the suitors who did not appear. But this, we are told, was not done in the county courts, whence we may infer that those who did not attend were not at pains to excuse themselves*. There is much in the later history of parliamentary elections to make us believe that little trouble was taken to enforce the appearance of those who were bound to come, and that no trouble was ' Petition of the Barons, c. 24. 2 Provisions of Westminster, o. 1, 2, 3 ; Stat. Marlb. c. 9. ^ Writ of 43 Hen. III. found in a MS. Eegistrum Brevinm ; Camb. Univ. Lib. Kk, V. 83. 4 The Court Baron (Selden Soo.) pp. 80-1. OH. III. § 1.] The County. 531 taken to exclude the presence of those who were not bound'. Besides the shape that it took once in every four weeks and 7^9 "o""^' the fuller shape that it took once in every six months, the fullest county court may perhaps have taken a yet ampler shape upon great occasions, in particular when it was summoned to meet the justices in eyre, an event which, according to the opinion of the suitors of Henry III.'s day, was not to occur more than once in seven years and which as a matter of fact did not occur much oftener. That the common immunity 'from shires and hundreds' did not discharge its possessors from having to appear at these grand meetings is clear ; the eyre was intended to override ' the franchises' as much as possible; but there were lords who enjoyed by prescription the power of compelling the king's justices to come and sit in their territories^ It may even be argued that on these rare occasions all the freeholders of the county, great and small, had to present themselves. But the writs which summon these meetings hardly prove this^ ; we find some traces of persons bound by tenure to discharge the suit due from vills and manors even when that suit is to be done before the justices in eyre*, and the lists of persons who either sent excuses for not coming or were amerced for being absent without excuse do not point to assemblages so large as those which must have come together had every freeholder of the shire been bound to attend them. 1 See Biess, Gesohiohte des Wahlreohts, cap. 3 ; but Eiess passes too lightly by the obligation of suit of court. ^ As to these franchises, see Select Pleas in Manorial Courts, p. xxv. 3 For the form of the summons see Eot. CI. i. 380, 473, 476; ii. 151, 213; Bracton f. 109b. It runs thus: — 'Summoue per bonos summonitores omues archiepiscopos, episcopos, comites, et barones, milites et libere tenentes de tota bailliva tua et de qualibet viUa iiij. legales homines et praepositum et de quolibet burgo xij. legale J burgenses per totam ballivam tuam et omues alios de bailliva tua qui coram iustioiariis nostris itinerantibns venire solent et debent.' Now to say ' Summon all the archbishops, bishops, earls, barons, knights and free- holders of your bailiwick and aU others of your bailiwick who are wont and ought to attend the justices' is to use a phrase which is somewhat ambiguous. May it not fairly mean ' Summon those freeholders and others who are wont and ought to come'? * Thus a tenant of the Abbot of Gloucester is bound to acquit the whole vill from suit to all courts of the hundred or of the county or of justices and all other suits which pertain to the said vill ; Cart. Glouo. i. 386. At Northleaoh a tenant of the Abbot is bound to do suit for his lord to the county and the hundred and must remain before the justices in eyre during the whole of their session ; Ibid. iii. 180. 34—2 532 Jurisdiction and Communal Affairs, [bk. II. The com- munal courts in earlier times. For a time remoter than the thirteenth century we have but little evidence ; indeed the passage in the Leges Henrici to which reference has already been made' seems to tell us all that we can learn. It gives us a list of the persons who are to attend the shiremoot — episcopi, comites, vicedomini, vicarii, centenarii, aldermanni, praefecti, praepositi, barones, vavassores, twngrevii, et ceteri terrarum domini. Of some of the titles here mentioned an explanation is to be. sought rather in France than in England ; we may doubt whether to the writer's mind they conveyed any precise meaning, whether he meant much more than that all persons of distinction, all the great, ought to corned But who are the terrarum domini 1 That they are not merely the tenants in chief v^y fairly be argued from the fact that vavassors as well as barons are among them, though we can not be certain that either of a baron or of a vavassor any exact definition could have been given I Whether the term 1 Leg. Henr. 7, § 2. 2 The vicedomini may possibly be the vicecomites, the sheriffs, who, if this be not so, are omitted from the list ; but the three titles vicedomini, vicarii, centenarii coming together suggest that the writer is using up all the titles that he knows, whether French or English. Neither the vidame nor the viguier took root in England ; the centenarii may be the bailiffs of the hundreds, but the conjunction of these three titles is rather French or Fraukish than English. Stapleton, Norman Exchequer Rolls, i. xxxv., says that the titles vicariiis and centenarius are not met with in Norman diplomas of a later date than the eleventh century. Some MSS. insert still more puzzling titles, herehohei, triengrevii, leidegrevii. The first of these looks like a reminiscence of the heretoga, the two others may stand for the reeves of trithings or ridings and of lathes. ^ Neither the theory that the vavassor must needs be a vassal's vassal, nor the derivation of his title from vassi vassorvm can be regarded as certain. In England the word is rare. It occurs a few times in Domesday Book. The most important passage is that which describes a group of vavassores in Suffolk ; D. B. ii. 445-7. Apparently they hold immediately of the king ; for the more part they are Englishmen with small tenements. In Leg. Hen. Prim. 27 the vavassors 'who hold free lands' have courts for their men. The term never became a technical term of the law. According to Bracton, f. 5 b, the vavassors are ' persons of great dignity ' ; but then he indulges in absurd etymology and makes the vavassor va^ sortitum ad valitudinem. In the Normandy of the twelfth century the term seems often used to describe tenants who owe military service but only in light armour ; see e.g. the return of knights' fees at the end of Howlett's edition of Eobert of Torigni, p. 351 : — ' Isti sunt vavassores de Abrincantino ad servicium ecelesiae Montis cum scuto et lanoea ; Hoel est liber vavassor cum scuto et lancea.' As to these Norman vavassors see Delisle, Etudes sur la condition de la olasse agricole, pp. 3-5. In the bilingual Leges WiUelmi (cap. 20) the vavassor, who represents the ' medial thegn ' of Cnut's law, gives by way of relief his horse, hauberk, helmet, shield, lance and sword. CH. III. § 1.] The County. 533 ' lords of lands ' or ' owners of lands ' was intended to comprise the humbler freeholders, for example, the considerable class of persons who appear in Domesday Book as liheri homines, may be doubtful ; dominus is a flexible word ; but we have some proof that in Henry I.'s time ' small men,' minuti homines, owed suit to the county court and served as doomsmen\ Altogether the words of our text are vague ; they point to no one clearly established rule, but rather to a struggle between various principles ^ One possible principle might be found in personal rank ; A struggle the rank of a baron, a knight, a vavassor, a thegn. Another various might be found in the characters of the various tenures, p^^'p'®^' military and non-military, serjeanty and socage. A third might be found in the grades of tenure, tenancy in chief of the king being contrasted with mesne tenures. Probably a fourth was already being found in what we will take leave to call mere ' realism ' and private bargainings ; suit is becoming a debt owed by manors and hides and acres, and those who represent the burdened land may adjust the burden as seems to them best. If a lord attends, we are told, he thereby discharges all the land that he holds in demesne'- Suppose him to make a feoffment of part of this land; why should a second suit become due ? The court is entitled only to such suits as it has been seised of in the past. The privilege of doing his suit by attoruey to the courts of Suit by the county, the trithing, the hundred and to the seignorial courts was conceded to every free man by the Statute of and thus seems to have the full knightly panoply. It is very remarkable that in the Ust of titles now under discussion miUtes does not occur. ' Thus in the Pipe EoU of 31 Hen. I., p. 28, there is mention of the ' minuti indices et iuratores,' whose misdoings have rendered them liable for a sum of more than 300 marks. Elsewhere the same document uses the terms ' minuti homines ' and ' smalemanni ' as though they represent a well-recognized class : thus p. 103, ' iuratores et minuti homines ' ; p. 132, ' de tainis et dreinnis [thegns and drengs] et smalemannis inter Tinam et Teodam.' 2 The difficulty is increased by Leg. Hen. Prim. 29, § 1, where it is said that the king's judges are to be the barons of the county who have free lands, while villeins, cotsets, farthinglanders (ferdingi) and other unsubstantial folk (viUs vel inopes personae) are not to act as judges. This passage seems to contemplate the existence of no class intermediate between barones and villani ; but, unless both of these terms are used with enormous licence, such a class there certainly was. 3 Leg. Hen. 7, § 7. 534 Jurisdiction and Communal Affairs, [bk. ii. Merton in 1236*. This general concession we may treat as new, though for a long time past the greater men were privi- leged to send their stewards or a deputation of villagers from their villages^ and sometimes the tenant who was bound by his tenure to discharge the suit due from the land was spoken of as the enfeoffed attorney or attorned feoffee of his lord'. As to the deputation of villagers to attend the county court we read nothing of this in documents later than the Leges Henrici, though, as will be seen hereafter, the reeve and four men of the township have to attend the sheriff's turn and the coroner's inquests, and they must go to the county court if they have a crime to present. Nor do the Leges Henrici contemplate their appearance as normal : — if neither the lord nor his steward can be present then the reeve, priest and four men may appear and acquit the vill of its suit. Still this draws our attention to yet another principle that has been at work ; the county court does not merely represent all the lands of the shire, but it also represents all the vills of the shire and it is quite in conformity with this that in the thirteenth century the suit-owing unit of land should very frequently be a vill*. Perhaps it is this heterogeneous character of the county and character hundred courts which makes it possible for men to regard them coiSt"" ^ as thoroughly representative assemblies and to speak of them as being the counties and hundreds. They do not represent just one well-defined class or condition of men, and they do represent all the lands of the shire, franchises excepted. Every landholder who holds his land freely may be deemed to be present there, if not in person then by someone who represents his land, it may be by his lord, or it may be by his tenant. At any rate the whole shire, franchises excepted, seems responsible for the misdoings and defaults of its court, even for those misdoirlgs and defaults which take place in the thinly attended meetings that are holden month by month. ' Stat. Mert. c. 10. " Leg. Hen. c. 7, § 7. » Thus the Prior of Deerhurst owes a single suit to the county of Oxford for his manor of Taynton ; this is done for him by J. S., his attorney enfeoffed for this purpose in ancient times ; B. H. ii. 733. * In one of the Phillips MSS. of Bracton, No. 3510, f. 36 d., a note from the early years of cent. xiv. says that when the county is fined for false judgment, ' tunc soli liberi homines per quos indicia talia redduntur divites et pauperes pro aequalibus portionibus contribuunt, nullo modo disenarii, i.e. custumarii ' ; but ' soli custumarii et nou liberi homines ' pay the murder fine. tative CH. III. § L] The County. 535 The suitors were the doomsmen of the courb. The evidence The suitors that they bore this English title is indeed slight, but some such men. term we must use'. Occasionally in Latin documents they are spoken of as indices, more commonly as iiidicatores" ; iusticiarii of course they are not; iudicatores is a word which serves to distinguish them from ecclesiastical indices and royal iusticiarii. But whatever may have been their English title, their function is constantly put before us as that of ' making the judgments. If for a moment we may adopt German terms we can say that they are die Urtheilfinder, while the sheriff or (as the case may be) the bailiff of the hundred, or the steward of the franchise is der Richter. He is, we may say, the presiding magistrate ; he summons the court, he ' holds the court,' he ' holds the pleas,' he regulates the whole procedure, he issues the mandates ; but he does not make the judgments: when the time for a judg- ment has come he demands one from the suitors. During the Norman period this seems the constitution of all courts, high and low. When there is a trial in the king's court, the king demands a judgment from the assembled prelates and barons ^ But the gradual intrusion of the sworn inquest, of the nascent trial by jury, soon begins to transfigure those courts in which the king presides by himself or his specially appointed com- missioners ; justices and jurors begin to take the place of president and doomsmen, and this process is so rapid that we have now-a-days some difficulty in describing the ancient courts without using foreign or archaic terms. Still the communal courts preserve their ancient form. Under Edward I. Hengham says that if a false judgment be given in the county court, the sheriff ought not to be punished; 'the county, that is, the 1 See Hazlitt's edition ot Blount's Tenures, p. 174, citing the Hundred Boll of Hereford ; ' solebat faeere seotam ad hundredum praediotum et esse unus doomsman de eodem hundredo.' But this has not been found in the printed Hundred Boll. 2 Hazlitt's Blount, pp. 46, 152, ' per servitium inveniendi unum iudicatorem'; Select Pleas in Manorial Courts, i. p. Ixv, 'pro defectu iudicatorum. ' In the Pipe Boll of 31 Hen. I. we find p. 27, ' iudicatores comitatus, 'p. 28 ' minuti indices,' p. 34 ' indices et iuratores de Bborascira,' p. 97 'de iudicibus comitatus et hundretorum.' 3 When a peccant vicar choral of Salisbury is brought before the dean and chapter, the dean asks the canons for a judgment. Beg. St Osmund, ii. 24 : 'Cum igitur dioeret eis decanus quod suum erat errata clericorum...corrigere, cum iudicio tamen capituli, quaesivit ab eis indicium. Qui communicato consilio iudicaverunt ut decanus ipsum Thomam...suspenderel.' court. 536 Jurisdiction and Communal Affairs, [bk. ii. commune of the county ' is to be punished ; therefore, he adds, let the suitors beware. Perhaps in his day some explanation of this state of things was thought necessary, at any rate he gives one: — sheriffs might err from partiality or from ignor- ance; besides sheriffs are sometimes men of little substance and would be unable to pay an amercement if convicted of a false judgment. Therefore, says he, it is ordained that the judgment be given by the whole county^- A session That even in the thirteenth century the participation of the county suitors in the judgments was by no means a mere formality we may learn from records which give us valuable glimpses of the county courts and their procedure. In 1222 the county of Oxford was charged with a false judgment. Four knights came to Westminster to bear record of the suit and told their version of the pleadings and of the judgment. Then, upon a suggestion that their record was untrue and that nearly all the knights of the county had arisen and refused to concur in that judgment, six other knights were summoned to Westminster, who came and told a very different story. Of the sheriff we read nothing ; those who asserted the validity of the judgment averred that one of the knights, Matthew of Beythorpe, at the request of the whole county delivered the judgment in full county courts In 1226 there was a quarrel between the sheriff of Lincolnshire and the suitors. The version of the story favourable to the sheriff is this : — One day he held pleas in the county court from early morn to vespertide and then, since many pleas remained unheard for lack of daylight, he told the ' stewards and knights and others of the county' that they must come again next morning, hear the plaints and make the judgments. On the following morning the sheriff took his seat; the knights and stewards remained outside the house; he bade them come in, hear the plaints and make the judgments. They refused, and even those who had entered the house left it saying that the county court should only be holden for one day at a time. Therefore the sheriff, since he alone could not make the judgments, adjourned the plaintiffs and defendants to the wapentake courts; seven score cases were thus left unheard. Then he held a court for the ten wapentakes of Ancaster, to which came many, both knights and others; among them 1 Hengham Magna, cap. iv. " Note Book, pi. 212. CH. III. § l.J The County. 537 Theobald Hauteyn and Hugh of Humby; and, the pleadings having been heard, the sherifT told the knights to make the judgments. Then Theobald arose and said that they ought not to make the judgments there nor elsewhere outside the county court, for he had lately been in the king's court talking with the Archbishop and the Earl of Chester and other magnates and he was certain that before three weeks were out they would have the king's writ freeing them from these exactions. Thereupon the sheriff answered that for all this he should not stay his hand from doing justice to the poor until he received some command to the contrary; and once more he bade the knights and others make the judgments. They then asked leave to talk the matter over by themselves and went out. While they were in conference Theobald and Hugh came to them, and protested that the sheriff was infringing Magna Carta and the franchises of the Earl of Chester and the other magnates, and advised them to make no judgments. Then they entered the house and Theobald as their spokesman said that they were not bound to make any judgments, and abused the sheriff and demanded his warrant for holding pleas in the wapentake. The sheriff answered that he thought that he as sheriff and bailiff of the king had warrant enough, and then departed, his business undone. Then arose Thomas Fitz Simon, the steward of John Marshall, and said that Hugh was wrong in demanding the sheriff's warrant and that it was rather for Hugh to show why the sheriff should not hold pleas. And then Thomas deemed a doom {et unum indicium fecit idem Thomas). 'That's your doom,' was the scornful answer ; ' we shall have your lord here presently and will tell him how you behave yourself in this county'.' We have told this curious story at length because it The suitors illustrates several points, the constitution of the court by ' the aooms* stewards, knights and others,' the amount of judicial business that it has to do, such that after a long day's work a hundred and forty causes must stand adjourned, the unwillingness of the suitors to do anything that may increase the burden of the suit, the position of the sheriff as the presiding oflScer, his incompetence to make judgments. Over and over again the function of the suitors is defined as that of making judgments. And it is much rather as 'judges of law ' than as 'judges of 1 Note Book, pi. 1730. 538 Jurisdiction and Communal Affairs, [bk. ii. fact ' — if into such a coutext we may introduce these modern terms — that the suitors are expected to be active. A collection of precedents designed for the use of the stewards of the manorial courts has come down to us. In most of the hypo- thetical cases all is supposed to go smoothly; the plaintiff pleads, the defendant pleads, and then the steward as a matter of course gives the judgment of the court, to the effect that there must be an inquest or that the defendant is to bring compurgators to prove his case. We may indeed read through almost the whole tract without discovering that the steward has any assessors. But just in one case the defendant does not deny the plaintiff's plaint with adequate particularity. There- upon the steward bids the parties retire and addresses the doomsmen : — ' Fair sirs, ye who are of this court, how seemeth it to you that the defendant hath defended this ? ' A spokes- man answers that the defence was insufficient. The parties are then recalled and the steward informs them of the judgment of the courts Probably in a manorial court the steward would often have matters his own way, but a sheriff might well find that some of the suitors of the county knew far more law than he did, and our story from Lincolnshire will show us that they might have decided opinions of their own about the meaning of Magna Carta. To give one more example : — In Edward I.'s day the palatinate of Chester had fallen into the king's hand ; the justiciar of Chester was the king's officer ; on one occasion he was presiding in the palatine court and Ralph Hengham, one of the royal justices of England, had been sent thither to act as his assessor. An assize of last presentation came before them ; certain usual words were missing from the writ. Thereupon arose one John of Whetenhall, who was sitting among the doomsmen of the county, and asserted that the Earl of Chester had delivered to them a register of original writs and that the writ in the present case conformed to that register. The doomsmen then demanded an adjournment until the morrow, and then one of them pronounced the judgment. Hengham declared that the judgment was against law and departed. Thus even in the presence of a royal justice the doomsmen of Chester decided questions of law^ On other occasions we find these ' doomsmen and suitors ' asserting that before a judgment of their court is evoked to the king's court, all the barons and 1 The Court Baron (Selden Soc.) p. 48. ^ piaeit. Abbrev. 268-9. CH. III. § 1.] Tlie County. 539 their stewards and all the doomsmen of the county must be summoned to decide whether they will stand by the judgment or amend it'. We learn from one passage in the Leges Henrici that if the Powers of judges disagreed the opinion of the majority prevailed"; in another passage we are told that the opinion which is to prevail is that of the better men and that which is most acceptable to the justice. The latter text, though not unambiguous, seems to mean that if the doomsmen differ about the doom the sheriff or other president of the court may adopt the ruling that he thinks best, but should have regard to the rank and repute of those who have offered their opinions'. A case would not necessarily be heard by the whole body of suitors. In the first place, some might be rejected from the judgment-seat for divers reasons, in particular as not being the 'peers' of the parties ; for it is in this context that we first hear the phrase that was to become famous at a later time, ittdicium parium suorum. Every one is to be judged by his peers and by men of the same district ; there are to be no ' foreign judgments,' that is to say, judgments by strangers; the great man is not to perish by the judgment of those of lower degreed How far this dangerously aristocratic principle was carried in the com- munal courts w^e can not say; to all appearance the old scheme of estates of men, which recognized such equations as 1 thegn = 6 ceorls, gave way before feudal influences, while these influences were not powerful enough to substitute in its stead a classification based on the various kinds or the various grades of tenure. The small are not to judge the great : — no more accurate principle can be stated. In the second place, it seems to have been a common practice, at least in certain districts, for the parties to elect from among the suitors a 1 Placit. Abbrev. 229, 287. 2 Leg. Henr. u. 5, § 6. s Leg. Henr. >j. 31, § 2 : ' vinoat sententia meliorum et oui iustitia magis acquieverit.' Even if imtitia here means ' justice ' and not ' the justice,' stUl it would be for the justice to decide on which side justice lay. In these Leges the title itntitia seems to be often given to the sheriff or other president of the court. The general theory of the time demands that the prevailing opinion shall be that of the maior et savior pars. See above p. 491. - Leg. Henr. c. 31 § 7 : ' Unusquisque per pares suos est iudicandus, et eiusdem provinciae ; peregrina vero iudicia modia omnibus submovemus.' Ibid, c. 32, § 1 : ' neo summorum quispiam minorum iudioatione dispereat.' 540 Jurisdiction and Communal Affairs, [bk. ii. The busones. Business of the court. certain number of judges to decide their dispute ; both parties might agree in choosing the same men, or the one party would choose half of the whole number, the other party the other halfi. We may well suppose that the ordinary business of the court was usually transacted by a small group of active and business-loving men. Of such a group we hear something, and the members of it seem to bear the strange name husones or buzones. Bracton tells us that when the king's justices in eyre come into the county and have proclaimed the object of their mission they shall go apart, taking with them some four or six or more of the great folk of the county, who are called the husones of the county and whose opinions carry weight with the rest, and shall have a colloquy with them''. To suggest that in the place of this curious word we should read barones is easy ; but the same word occurs elsewhere. In John's reign the county of Gloucester was amerced for a false judgment ; the roll which records this adds, 'And let the knights of the county who are wont to take part in false judgments and are buzones iudiciorum, be arrested'.' Neither passage would suggest that the title was an official one, or more than a cant name for the active doomsmen of the shire-moot, but the context into which Bracton introduces it may serve to show how the way was paved for the conservators of the peace and the justices of the peace of a later time*. To what we have said above concerning the competence of this court little can here be added. Seemingly its jurisdiction in actions for land had become of small importance in the course of the thirteenth century. It formed a stepping-stone between the feudal court and the royal court, and he who brought his case thus far meant to carry it further. As regards personal actions, in Edward I.'s day its competence was re- stricted within a limit of forty shillings^ When, how and why ' Leg. Henr. o. 31, § 8 : ' In quibusdam loois utrumque eligitur iudicium, medietas ab eis quorum est negotium.' The history of Ramsey Abbey, c. xlvii. p. 79, describes an action brought in the days before the Conquest : ' xxxvi barones de amicis utriusque partis pari numero electos ipsi indices consti- tueruut.' 2 Bracton, f. 113 b. 3 Placit. Abbrev. p. 85. The word occurs twice in the record. * Is it impossible that the word is connected with the French hesoin, so that the buzones are the men of affairs ? 6 Britton, i. 155 ; Fleta, 133. CH. III. § 1. ] The County. 541 this limit was imposed is an exceedingly difficult question. Possibly we may trace it to an exposition which the king's justices had given of the Statute of Gloucester (1278), though this statute on the face of it seems to favour the local tribunals, for it merely says that none shall have a writ of trespass in the king's court unless he will affirm that the goods taken away were worth forty shillings at the leasts But the sum of forty shillings is mentioned at a much earlier time. In the Irish Kegister of Writs of John's day a writ directing the sheriff to hold a plea of debt (in technical language 'a Justicies for debt') is given with the remark that if the debt be less than forty shillings this writ can be obtained without gift, that is without payment to the king, while if the debt is greater the plaintiff must find security to pay the king a third of the sum that he recovers'. In an English treatise of somewhat later date' we find the same rule but the limiting sum has been raised from forty shillings to thirty marks. As a rule a plaintiff who went to the county court to recover a debt did not want any writ at all, though the royal missive might be useful, since it would urge a dilatory and not impartial sheriff to do his duty. Perhaps some combination between a rule about the fees to be paid for writs and the rule laid down by the Statute of Gloucester produced that limitation of the competence of our local courts which in the end was their ruin. However in Edward L's day that ruin was a long way off; forty shillings was yet a good round sum ; few, for example, were the burgesses of Colchester whose taxable chattels all told were worth as much*. One act of jurisdiction, one supreme and solemn act, could Outlawry be performed only in the county courts and in the folk- moot of bounty London, the act of outlawry. Even the king's court did not "''"'■'• perform it. The king's justices could order that a man should be ' exacted,' that is, that proclamation should be made bidding him come in to the king's peace, and could further order that in case of his not appearing he should be outlawed ; but the ceremony of exaction and outlawry could take place only in a shire-moot or folk-moot. And so it is even in our own day, 1 Stat. 6 Edw. I. 0. 8. 2 See Maitland, History of the Begiater, Harvard Law Eeview, iii. 112. 3 The revised version of Glanvill in the Carpenter MS. at Cambridge. " See the Colchester tax roll, Eot. Pari. i. 228, 542 Jurisdiction and Communal Affairs, [bk. ii. or rather so it would be had not outlawry become a mere name'. Govern- In the main the county court is a court of law, but in the functions, middle ages jurisdiction is never very clearly separated from government, and, as has been sufficiently shown elsewhere ^ the assembly of the shire sometimes has fiscal, military and ad- ministrative business before it. It can even treat with the king about the grant of a tax, and ultimately, as all know, it sends chosen knights to represent it in the parliaments. Still we should have but little warrant for calling it a governmental assembly. It can declare the custom of the county but we do not often hear of its issuing ordinances or by-laws, though with the sanction of the justices in eyre, the county of Northum- berland, all the free men thereof unanimously consenting, institutes a close time for the precious salmon'. Nor must we endow this assembly with a power of making rates, though the liability of the county for the repair of certain bridges appears at an early time and may at times have necessitated a vote and resolution. Thus in John's reign the Abbot of Lilleshall says that the sheriff and other magnates provided that he should build a bridge at Atcham and in return might take certain tolls there*. Still in Edward II.'s reign the communities of Shropshire and Cheshire go to the king for leave to levy a pavage for the improvement of a ford^ and, as we shall see below, even the boroughs did not at this time aspire to much liberty of self-taxation. Place of Hengham speaks as though the county court was sometimes held m the open air and in out-of-the-way places ^ Usually it was held in the county town, but in Edward II.'s day the sheriff of Sussex had been holding it at divers places and to fix it at Chichester required a royal ordinance'. In Henry II.'s reign the county court of Derbyshire was held at Nottingham until the king established it at Derby on the petition of the ' John Wilkes was outlawed in the county court of Middlesex ' at the Three Tons in Brook Street near Holborne in the county of Middlesex': Burrow's Eeports, p. 2530. 2 Stubbs, Const. Hist. ii. 208-216. ' Northumbrian Assize Bolls, p. 208. * Select Pleas of the Crown, pi. 176. 6 ^^_ p^jj^ ;_ 3gy_ * Hengham Magna, cap. 4 : ' quia frequenter evenit quod comitatus tenentur in silvis et campestribus foris villis et alibi.' ' Bot. Pari. i. 379 ; see also Stat. 19 Hen. VII. c, 24. session. CH. III. § 2. J The Hundred. 543 Derbyshire folk^ Some moots may still have assembled in the opea air; the Lincolnshire court sat indoors''; Earl Edmund built a great hall at Lostwithiel for the county court of Cornwall' ; but we still hear of ' a green place ' in Colchester in which the court of Essex was holden*. Apparently in old times the doomsmen of the court sat upon four benches arranged in a square ; what was done in court was done ' within the four benches^.' § 2. The Hundred. The county is divided into hundreds or into wapentakes or The into wards, the term ' wapentake ' appearing in Yorkshire, a'Sstrict Lincolnshire, Derbyshire, Nottinghamshire, the term ' ward ' in the northernmost counties. It is well known that the size of the hundred varies very greatly, but that it varies according to a certain general rule. 'Thus Kent and Sussex at the time when Domesday Book was compiled, each contained more than sixty hundreds, as they do at present; and in the counties which composed the ancient kingdom of Wessex, the hundreds are almost as numerous, while the irregularity of size, and the scattered confusion of the component parts of these ancient hundreds must have been the result of usurpation or of impro- vident grants On the contrary, Norfolk and Suffolk (the East- Anglian counties) maintain a regularity of division still applicable in many instances to the administration of justice. In the midland counties the hundreds increase in size, but are not deficient in regularity. In Lancashire (a county of greater extent than any of the Wessex counties) there are no more than six hundreds — in Cheshire, seven : — and upon the whole so irregular is this distribution of territory, that while some of the southern hundreds do not exceed two square miles the hundreds of Lancashire average at three hundred square miles in areaV If we consider not acreage but a more 1 P. Q. W. 159. 2 See above, p. 536. 3 Eot. Pari. i. 296. " E. H. i. 142. 5 Northumbrian Assize Bolls (Surtees Soc.) p. 196 : ' infra quatuor bancos.' In the borough court at Totnes proceedings take place 'inter quatuor scamna gildhallae ' ; Third Eep. Hist. MSS. Ap. 342. In later days the suitors of a court baron are sometimes called its 'benchers.' « Population Abstract, 1831, vol. i. pp. xiv-xv. 544 Jurisdiction and Communal Affairs, [bk. ii. significant fact, namely, the number of vills in the hundred, we are brought to similar results. A Kentish hundred will often contain but two, three or four vills ; there seem to be instances in which vill and hundred are coterminous'. A 'detached part' of a hundred is commoner than a ' detached part ' of a county ; in some parts of England the hundreds have from a remote time been extremely discrete. The The hundred has a court. According to the Leges Henrici court. it was held twelve times a year'''; but in 1234, an ordinance states that in Henry II.'s time it was held at fortnightly intervals and declares that for the future it is to sit but once in every three weeks'. It seems to have been supplied with suitors in the same way that the county court was supplied : — the duty of suit had taken root in the soil. In some cases the number of suitors certainly was not large. We read that in the wapentake of Bingham in Nottinghamshire there were but twelve persons who owed suit ; each of them had been enfeoffed to do the suit due from a barony; the baronies of Tutbury, Peverel, Lovetot, Paynel, Dover, Richmond, Gaunt and Byron were represented each by a suitor, the baronies of Basset and Deyncourt by two suitors apiece". It was a court for civil, that is non-criminal, causes ; but unlike the county court it did not hold plea of lands ; thus the actions which came before it were chiefly actions of debt and trespass. It does not seem to have been in any accurate sense inferior to the county court, that is to say, no appeal or complaint for default of justice could be taken from the one to the other. Hundreds Those hundreds which had not fallen into private hands king's ^Qve ' in the king's hands.' The sheriff seems usually to have hands. jg^ them at farm to bailiffs; the bailiff presided in the court and after paying his rent made what gain he could from fees and amercements. Complaints are frequent that the sheriffs have raised the old rents ; the bailiffs who have to pay advanced rents indemnify themselves by new exactions from the men of the hundreds. In Sussex each hundred seems to have had a beadle, that is .a summoner, who was called an alderman. We are told in Edward I.'s day that in time past these officers had been elected by those who paid the hundred- ' Thus the hundred of Barclay seems to consist of the parish of Biddenden : Ibid. i. 266. = Leg. Hen. 7, § 4. '' Ann. Dunstapl. 139-140. * E. H. ii. 318. CH. III. § 2.] The Hundred. 545 scot ; but now, at least in one case, they buy their offices and make a profit by extortions^ We hear further that such of the tenants of the barony of Aigle as owed suit to the hundred court paid the sheriff £9. Vis. Qd. a year in order that their suit to the county court might be done for them by the aldermen of the hundreds, and this new hint as to the actual composition of a shire-moot is welcome'. But many of the hundreds had been granted to private Hondreda persons ; many of the hundred courts had become private handa^* * property. From 1255 we have an account of the thirty-nine hundreds of Wiltshire*; sixteen and a half were in the king's hand ; twenty-two and a half were in the hands of others. The abbess of Shaftesbury claimed one under a gift of iEthelred ; the abbess of Eomsey claimed another under a gift of Edgar ; the bishop of Salisbury deduced his title from Offa. What is more, in thirteen cases the lord of the hundred claimed to exclude the sheriff from holding a turn; he himself had the view of frankpledge throughout the hundred save where this was in the hands of the lords of manors'. In 1320 the men of Devon said that almost all the hundreds of their shire belonged to the magnates*. In this sense a 'hundred' is an incorporeal thing ; the lord of a hundred need not be lord or tenant of a single acre of land within the precinct. The hundred, like the county, was conceived to be fully Duties of represented by its court. If the court gave a false judgment, hundred, the hundred had to pay for it. And the hundred, like the county, had communal duties and could be fined for neglect of them. The chief example of this is the famous murder fine. If a person was slain and the slayer was not produced then the hundred was fined unless the kinsfolk of the dead man would come and ' present his Englishry,' that is to say, prove him to be an Englishman by birth ; for, to the profit of the Exchequer, every dead man was deemed a Frenchman until the contrary was proved. The Statute of Winchester (1285) made the hundred liable for robberies committed within its borders in ' E. H. ii. 214, 217. ^ E. H. ii. 204-5. 3 E. H. ii. 230-238. It is not uncommon to find a lord with a half-hundred. Thus the king and the bishop of Salisbury share the hundred of ' Euberewe.' The division, at least in this case, seems not merely notional but physical ; the bishop holds a view of frankpledge in his half. * Eot. Pari. i. 381. P. M. 35 546 Jurisdiction and Communal Affairs, [bk. ii. case the robbers were not produced'. On the other hand we do not in this age hear of the hundred as having any communal property ; the sheriff, the bailiff or the lord gets the profits of its courts ; but in the Leges Henrici we may read how in some cases when the hundred has to pay the murder fine, it receives the chattels of the murderer". The Twice a year the sherifif makes a progress or 'turn' through turn. the hundreds, or rather through those which are not in the hands of such private lords as have the right to exclude him. The Leges Henrici tell us how twice a year a specially full hundred court is to be held for the purpose of seeing that the ti things are full and that all men are in frankpledge". Henry II. by the Assize of Clarendon ordered the sheriffs to inquire of robbers, murderers and thieves by the oath of twelve men of each hundred and of four men of each vill, and at the same time he directed that the sheriffs should hold the view of frankpledge as well within the franchises of the magnates as without. These purposes are answered by the sheriff's ' turn ' (the word occurs in the charter of 1217*) — the object of the turn is ' quod pax nostra teneatur et quod tethinga integra sit.' The procedure of the turn at the end of the thirteenth century was this: — Each vill in the hundred was represented by its reeve and four men, or each tithing was represented by its tithing-man, or perhaps in some places both systems of repre- sentation prevailed concurrently: — the representatives would for the more part be villani. Then besides them a jury of freeholders was wanted. It is probable that ia strict theory every freeholder should have been present, but twelve there had to be. Then the sheriff set before the representatives of the vills or tithings a set of inquiries known as ' the articles of the view.' The list seems to have varied from place to place and time to time. Its object, we may say, was threefold, (1) to see that the system of frankpledge (of which we shall speak below) was in proper working order, (2) to obtain accusations against those suspected of grave crimes, in order that the sheriff might capture them and keep them imprisoned or on bail until the king's justices should come to hold an eyre or deliver the gaol (for by this time the sheriff had lost the power of holding pleas of the crown), and (3) to obtain accusations 1 Stat. Wint. 13 Edw. I. == Leg. Henr. c. 92, § 4. 3 Leg. Henr. o. 8. * Charter of 1217, c. 42. OH. III. § 3.] The Vill and ITie Township. 547 against those suspected of minor offences in order that they might be amerced by the sheriff. With this last object in sight the articles usually specified many petty misdeeds — hue and cry wrongfully raised, watercourses impeded, roads diverted, brawls and affrays, breaches of the assize of bread and beer, and so forth. The representatives of the vills or tithings in answer to these articles made presentments which were laid before the twelve freeholders, who had power to reject them or supply omissions in them. Upon the presentments thus endorsed by the freeholders the sheriff took action, issuing orders for the arrest of those charged with felony and declaring those charged with pettier misdeeds to be in the king's mercy. He seems to have been the only judge in this court', but the amercements were ' affeered ' — that is to say, the amount to be paid by each person who had fallen into the king's mercy was fixed — by two or more of the suitors who were sworn to do the work justly^ § 3. The Vill and The Township. It seems nearly true, though not quite true, to say that the Engianfl whole of England is divided into vills or townships ; nearly mTtoto true, for it is commonly assumed that every spot of land must ''^^' lie within the limits of some vill ; not quite true, for it may be that there are spots so highly endowed with immunities, so much outside the ordinary rules of police law and fiscal law, that they are not accounted to form part of any vill, while in all probability there are some tracts, and by no means very small tracts, of country, which are deemed to belong to two, three, or more vills in common. Even a city or borough is a vill, or perhaps in some cases a group of vills'. 1 So in the court leet the bailiff is sole judge — 'judge for the day': T. B. 21-2 Edw. I. p. 25 : ' le baylif en ceo jor ad le regal e dorra jugement.' ^ Select Pleas in Manorial Courts, pp. xxvii-xxxviii. 3 Fortesoue, De Laudibus, cap. 24: 'Hundreda vero dividuntur per villas, sub quarum appellatione continentur et burgi atque oivitates Vix in Anglia est locus aliquis qui non infra villarum ambitus contirieatur, licet privilegiati loci infra villas de eisdem villis pars esse non censentur.' The general theory appears in the rule which expects that everyone who brings an action for land will be able to name the vill or vills in which the land lies. The law about this matter however was elaborate ; in some actions it was enough to name a hamlet, not so in others ; see Y. B. Mich. 15 Edw. II. f. 450. We hear of a spot in 35—2 548 Jurisdiction and Communal Affairs, [bk. ii. vm and Of the varyins' size of the vills it is needless to speak, for in general the vill of the thirteenth century is the ' civil parish oi the nineteenth. The parish of course is to start with a purely ecclesiastical district and during the middle ages it is no unit in the geography of our temporal law, though from time to time the secular courts must notice it when disputes arise about tithes and the like^ In southern England the parish normally coincided with the vill ; in the northern counties the parishes were large, often a parish consisted of a group of vills. The curious fact that in our modern law the parish has, at least in name, supplanted the vill or township, is due to causes which did not come into play until the Tudor time when the rate for the relief of the poor was imposed. The law then began to enforce a duty which had theretofore been enforced by religion and very naturally it adopted for this purpose the geography of the church. Then in course of time other rates were imposed by parliament and the poor's rate was taken as their model. Thus the parish became the important district for most of the purposes of local government and local taxation. But this victory of the parish over the township was hardly more than a change of name. The townships of northern England insisted that, albeit they were not parishes, they ought to be treated as units in the poor law system, as parishes for the purposes of the poor law, and then by force of statutory interpretations the old vill got a new name and appeared as the " civil parish^' Discrete As the county or hundred may be discrete, so also the vill may be discrete and, if we may argue from parish to vill, some of our townships were composed of scattered fragments. In certain parts of Gloucestershire, for example, until scientific frontiers were established by a modern commission, a parish consisted of a large number of small strips of land lying which the sheriff held his turn which was in no vill but was common to several vills, Y. B. Pasch. 17 Edw. II. f. 536 (a folio so numbered which seemingly ought to be numbered 544). 1 That the Saladin tithe of 1188 was collected from the parishes is no real exception ; payment of it was enforced as a religious duty by excommunication. " This process begins with Stat. 14 Car. IX. c. 12, sec. 21. At length in 1889 the rule is laid down that in statutes the word ' parish ' is to mean prima facie ' a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed ' ; Stat. 52 and 53 Vic. c. 63, sec. 5 ■ see also 29 and 30 Vic. c. 113, sec. 18. As we write this the institution of 'parish councils' is imminent; we could wish them a better name. CH. III. § 3.j The Vill and The Township. 549 intermingled with the lands of other parishes, in such a way as forcibly to suggest that at some remote time some one agricultural community split up into several communities, each of which was given a share of land of every quality^. A detached portion of a parish lying ten miles away from the main body is by no means an unknown phenomenon, while of certain parts of the north of England we are told that the townships are intermixed 'so that there is the most complete jumble which it is possible to conceived' The 'extra-parochial place' finds its explanation in the history of the church; in many cases that explanation need go back no further than some papal bull of comparatively recent date ; but when lying outside any known ecclesiastical division we find a single acre of land known as No Man's Land, and then another small patch bearing the same name which has but two inhabitants, and then a No Man's Heath of nine acres', we shall be strongly tempted to believe that as there were extra-parochial places, so also (if we may coin a new term) there were ' extra- villar ' places, tracts of waste which no township would acknowledge as its own. So also in our own day some large moors in the north of England are, or have lately been, deemed to be territory common to several different townships*. Besides vills there were hamlets, but the hamlet seems Hamlets, always to have lain within the boundaries of a vill and, though the law might for some purposes take note of its existence^, still it seems to have been but rarely treated as more than a mere geographical tract. On the other hand the vill or township was no mere part of the earth's surface, it was a community". 1 See the very interesting map of Donisthorpe given in Gomme, Village Community, p. 288, and at the end of the Eeport of the Committee on Commons' Inclosure, Pari. Pap. 1844, vol. 5. See also Eeport of Committee on Boundaries of Parishes, Pari. Pap. 1873, vol. 8, Minutes of Evidence, p. 85, where Ool. Leaoh mentions a ease in Gloucestershire, of which the present writer has some knowledge : — some ten parishes were intermixed in the most intricate fashion. 2 Col. Leaoh, loc. cit. p. 85. ■* Report of Committee on Parish Boundaries, Appendix pp. 217-219. « Ibid. App. p. 242. ' Y. B. 15 Edw. n. f. 450. ^ The so-called Statute of Exeter, Statutes of the Eealm, vol. i. p. 210, ordains an inquiry which is to be made by viUs, demi-vills and hamlets, a vill being represented by eight men, a demi-vill by six, a hamlet by four. But this seems exceptional. The meaning of a demi-vill will become plainer hereafter. 550 Jurisdiction and Communal Affairs, [bk. ii. ViUand township. Duties of township. In conformity with modern usage we have used the two words vill and township as though they were synonymous ; but in this respect medieval Latin was a more accurate language than our own; it distinguished between the villa and the villata, between the tract of land and the organized body of its inhabitants. Doubtless the English word which answered to the Latin villa was Mra, ton, town, a word wbich in compara- tively modern times we have allowed the larger and more highly organized towns to appropriate to themselves. We can not say that the distinction between villa and villata was always, still it was very generally, observed. If a crime takes place in the villa, the town of Trumpington, the villata, the township of Trumpington, may get into trouble. And^o in what follows we will use vill as an equivalent for villa, township as an equivalent for villata, thus distinguishing the plot of ground from the community that inhabits it'. For the township is a communitas", a legal unit, which even if it has not rights, most certainly has duties. We may reckon up the most important of these duties. It ought to attend the court held by the justices in eyre°. It ought to attend the sheriff's turn. It ought to attend the hundred and county courts whenever it has any crime to present*. It must come at the coroner's call to make inquest when a dead man's body is found °. But it has other duties besides those of thus appearing in court and giving its testimony. It is bound to see that all its members who ought to be in frankpledge are in frankpledge. In some parts of the country the township is itself a frankpledge, a tithing, a horgh, and in this case it is responsible for the '■ The notion that villata is a diminutive of villa is groundless. 2 Thus P. Q. W. 293, the communitas of a vill goes to the sheriff's turn by its tithing-man ; B. H. i. 275, the coroner's clerk exacted money from the communa of the vill of Sutton. ' Summons of the Eyre, Stnbbs, Select Charters, anu. 1231 ; Maitland, Pleas of the Crown for the County of Gloucester, passim, e.g. p. 9, ' villata de Hallinges non venit et ideo in misericordia.' * See writ of 1234, Ann. Dunstap. p. 139 ; E. H. ii. 29, presentments of the crown are made in the county court by the four neighbouring vills (i.e. neighbouring the scene of the crime) and if they do not come they are amerced ; they are amerced once more when the justices in eyre come round ; this is matter of complaint. " Bracton, f. 121b. If the coroner does not find the four neighbouring townships prompt to obey his call he amerces them ; B. H. ii. 808. CH. III. § 3. J The Vill and The Township. 551 production of any of its members who is accused of crime \ Apart from this, it was bound to arrest malefactors ; at all events if a person was slain within its boundaries during the daytime and the slayer was not arrested, it was liable to an amercement. In the thirteenth century this liability was frequently brought home to it by the justices in eyre ; it must be carefully distinguished from the liability of the hundred for the murder fine and seems to flow from no known act of legislation but to be based on immemorial custom". Again, from of old it was the duty of the township to raise the hue and cry and follow the trail of stolen cattle. In 1221 the jurors of Bridgnorth complained to the justices that the sheriff required of them the impossible task of following the trail through the middle of the town^ Further it was a common practice to commit prisoners to the charge of the villata and then, if the prisoners escaped, the villata was amerced. So if a malefactor took sanctuary the neighbouring townships had to watch the church and prevent his escape ; thus in 1221 the townships of Stone, Heath and Dunclent failed in their duty of watching the church of Stone*. Most of these liabilities can be traced back into the reign of ^^'^ly , " examples Henry II. A few examples of amercements may be given of its from among the many collected by Madox^ The men of Tixover are amerced for refusing to swear the king's assize, the township of Isle for not makiag suit after a murderer, the township of Childon for not making cry and suit, the township of Rock for doing nothing when a man was slain in their vill, the township of Midwinter for receiving a man who was not in frankpledge, the township of Newbold for a concealment and for burying a dead man without the view of the sheriff's serjeant, the township of Charlton Camvill for confessing what they had previously denied. During the course of the thirteenth century the activity of statutory , , . . . , ,. . . ,. , duties of the township as a unit in the police organization was further township. 1 Of frankpledge we speak below. " See Statute 3 Hen. VII. c. 1 ; Coke, 3rd Institute, 53 ; Hale, Pleas of the Crown, i. 448. The rule seems to be an ancient one ; see Gloucestershire Pleas of the Crown, pp. 60, 147 ; a murder was committed, the township confesses that this happened before vespertide and that it did not arrest the malefactor ; therefore it is in mercy. 3 Select Pleas of the Crown, pi. 173. * Ibid. pi. 135. " Madox, Hist. Exch. i. 541-568. 552 Jurisdiction and Commnnal Affairs, [bk. ii. developed by express legislation. An ordinance of 1233 pro- vided that in every villa watch should be kept throughout the night by four men at the least. This was repeated in 1252 and at the same time new provision was made for enforcing the assize of arms. The original assize of 1181 had not treated the villata as an organized entity ; it had required that individuals should have the armour suitable to their station. The ordinance of 1252 decreed that in every township a constable or two constables should be appointed, and a chief constable in each hundred to convene the iurati ad arma. In 1253 this is supplemented by a provision that arms necessary for the pursuit of malefactors are to be provided at the cost of the township and are to remain to the use of the township^. The whole system of the assize of arms and of watch and ward was consolidated and enforced in 1285 by the Statute of Winchester; the constabulary and the militia took the form that they were to keep during the rest of the middle ages^ Contribu- Again, we see the vill as a district bound to contribute to tionof & ' ,.,.., township the fines and amercements which are imposed upon the county fines. and the hundred, for instance, the murder fines for which the hundred is liable. In the Hundred Rolls we read numerous complaints about vills and parts of vills which have been ' sub- tracted' from these duties by lords, who have or pretend to have immunities granted by the king. The effect of such subtraction was to increase the burden that fell on the neigh- bouring vills or districts. Every extension of the ' franchises ' damaged ' the geldable,' that is to say, the lands and vills which enjoyed no immunity. Unjust The township again is constantly brought before us as from''°"^ having had to bear all manner of unlawful exactions from the townships, sheriff, his officers, the coroners and the bailiffs of the franchises. The Hundred Rolls teem with complaints. Not only have the townships been amerced, according to their own account un- justly amerced, for the neglect of their police duties, but the officers have refused to do their own duties without being paid by the townships. Sheriffs will not take prisoners off their hands ^ Stubbs, Select Charters: 'cum arcubus et sagittia et aliis levibus armis quae debent provider! ad oustum totius villae et quae semper remaneant ad opus praediotae villae.' ^ The documents of 1181, 1233, 1252, 1253, 1286 are all printed in the Select Charters. CH. in. § 3.] The VilV and The Township. 553 and coroners will not suffer them to bury their dead until there has been payment. One typical instance will be enough. A criminal took sanctuary in the church at Fosdike ; the township was bound to watch the church until the coroner came ; the coroner would not come for less than a mark ; so the township had to watch the church forty days to its great damage'. The practice of amercing the township for neglect of its Misceiiane- police duties may easily have begotten the practice, which offences certainly prevailed in the thirteenth century, of treating the township, township as an amerciable unit capable of committing misdeeds of very many kinds. Already in Henry IT.'s day the township of Maltby owes four marks for having ploughed up the king's highway*. In 1235 certain townships are to be amerced for having helped a man to put himself in seisin of common of pasture without waiting for the presence of the sheriff's officer ; their amercement is to be affeered by other townships'. On the Hundred Rolls we may find such entries as the following : — the township of Godmanchester has made a purpresture upon the king's highway and has appropriated therefrom the third of a rod ; the whole township of Eynesbury has dug in the king's highway and obstructed it to the nuisance of the country "- In one part of Cambridgeshire the hundredors speak of the townships as communes {communae) and accuse them of sundry transgressions ; the commune of Ely has occupied a fishery which used to belong to the manor of Soham ; the commune of Reach has broken through the big dike (the Devil's Ditch), so has the commune of Swaffham Bulbeck, which also neglects to repair its bridge; the commune of Exning has ploughed up the waste of Burwell, has obstructed the highway and diverted a watercourse. On the other hand, Alan Evilchild has damaged the commune of Burwell by a similar diversion, while Thomas of Bodenham has appropriated land from the commune of BurwelP. Even an assault and battery may be attributed to a township, for the whole township of Kennet has beaten and wounded two bailiffs^ 1 B. H. i. 308. ' Pipe Eoll, 12 Hen. 11. p. 49. " Note Book, pi. 1170. - E. H. ii. 666. 5 £ jj_ ii_ 497-498 : ' Thomas de Bodeliam appropriavit sibi de communa de Borewelle.' This is a little ambiguous and perhaps should be translated by 'T. de B. has appropriated part of Burwell common.' - E. H. i. 54. 554 Jurisdiction and Communal Affairs, [bk. ii. Organiza- tion of the township. All this seems to set before us the township as a legal entity which has, if not rights, at all events many and multi- farious duties and we might naturally suppose that in order to perform these duties it must have had some permanent organization, for example, some court or assembly in which the incidence of these duties could be apportioned among its members. When however we search for any such organization we fail ; at least for a while we seem to fail. Organization we find, but it is manorial ; courts we find in plenty, but they are courts of manors. The township as such has no court, no assembly. And so with the officers of the township : — the constable is a new officer, his importance lies in the future, while as to the reeve we only know him in real life as the reeve of a lord, the reeve of a manor, usually a villein elected by his fellows in the lord's court, presented to and accepted by the lord's steward, compelled to serve the office because he is not a free man. We must turn therefore from the township to the manor, but before that can be reached we must traverse the whole field of seignorial justice. The facts that we have to study are very intricate; the legal principles have tied them- selves into knots ; we must pull out the threads one by one. Frank- pledge. The system in ceutmy xiii. § 4. The Tithing. A good example of this intricacy is afforded by the system of frankpledge. We have had to mention it when speaking of the sheriff's turn, and again when speaking of the township's duties. But also it is closely connected in many ways with manorial affairs, with the relation between lord and men. Taken by itself it is a remarkable institution and one that suggests difficult questions. And first we may look at the law as stated by Bracton\ Every male of the age of twelve years, be he free, be he serf, ought to be in a frankpledge and a tithing {in franco plegio et in decenna). To this rule there are numerous exceptions according to the varying customs of different districts. The magnates, knights and their kinsmen, clerks and the like need not be in frankpledge ; the freeholder (in one passage Bracton 1 Braoton, f. 124-5. CH. III. § 4. J The Tithing. 555 even says the free man^) need not be in frankpledge, nor need the citizen who has fixed property : — his land is equivalent to a frankpledge. Again instead of being in frankpledge one may be in the mainpast of another. The head of a household answers for the appearance in court of the members of his household, his servants, his retainers, those whom his hand feeds, his manupastus or mainpast — we may use a very old English word and say his loaf -eaters^. They are in his frithborgh and need no other pledged But these exceptions, which vary from place to place, being made, a male of the age of twelve years or upwards ought to be, and it is the duty of the township in which he dwells to see that he is in frankpledge and tithing. If he is accused of a crime and not forthcoming and the township has failed in this duty, then it will be amerced. If on the other hand he was in a tithing, then the amercement will fall upon the tithing. The strict enforcement of these rules is abundantly proved Township by the rolls of the itinerant justices. When an accused person tithing, is not produced, his township is amerced if he was not in a tithing (decenna, theothinga, tethinga, thuthinga etc.), and if he was in a tithing then that tithing is amerced. But to all seeming the ' tithing ' meant dififerent things in different parts of the country. There can be no doubt whatever that over a large part of England the persons subject to the law of frankpledge were distributed into groups, each consisting of ten, or in some cases of twelve or more, persons ; each group was known as a ' tithing ' ; each was presided over by one of the associated persons who was known as the chief-pledge, tithing- man, head-borough, borsholder, head or elder, that is, of the horh or pledge*. The township discharged its duty by seeing that all those resident within its boundaries were in these associations. On the other hand in the southernmost and some western counties there seems to be a different arrangement: — the vill is a tithing, or in some cases a group of geographically separated tithings ; the tithing is a district, even the borgha or pledge is a 1 Bracton, f . 124 b : ' olerious, liber homo et huiusmodi.' 2 Du Oange's examples s. v. manupastus are almost exclusively from England or Normandy. 3 Bracton, f. 124 b. He is here making use of Leg. Edw. Conf. 20 (19). » See the facsimile of a part of a Norwich frankpledge roll in Leet Jurisdiction in Norwich (Selden Soc.) p. xlvii. 556 Jurisdiction and Communal Affairs, [bk. ii. district^ ; the tithingman is the tithingman of a place, of a vill or hamlet ; the personal groups of ten or a dozen men are not found. In this part of the country the two duties, which elsewhere we see as two, seem fused into one: the township discharges its duty of having all its members in frankpledge and tithing by being itself a tithing and a frankpledge ^ But further, there were considerable parts of England in which there was no frankpledge. In the middle of the thirteenth century the men of Shropshire asserted that within their boundaries no one was in a tithing; at the end of the century the jurors of Westmoreland declared that the law of Englishry, of murder fines, of tithing, of frankpledge, of mainpast, did not prevail and never had prevailed north of the Trent ; at any rate it did not prevail in their county. Probably they drew the line at too southerly a point and would have done better had they spoken of the Humber instead of the Trent; but it is, to say the least, extremely doubtful whether the system of frankpledge extended to any part of the ancient kingdom of Northumbrian. The view The maintenance of this system is enforced, not merely by pledge. amercements inflicted when the township or the tithing has failed in its duty and a criminal has escaped from justice, but also by periodical inspections, by what we might call 'field-days' of the frankpledges. Twice a year the sheriff holds in each hundred a specially full hundred court to see that all men who ought to be in frankpledge are in frankpledge, to see that the tithings are full. These half-yearly meetings we can trace back to the reign of Henry I. ; they may be much older ; in course of ' See the Hundred EoU for Kent, where the borgha seems often to be a tract of land. Thus, p. 202, a murder has been committed 'in borgha de Patrichesburn' : p. 206, Alexander Balliol holds one borga, namely Eidlingwalde ; Gregory of Eokesley holds the horga of Walesmere. 2 Palgrave, Engl. Commonwealth, vol. ii. pp. oxx-cxxvi; Stubbs, Const. Hist. i. 91-5 ; Maitland, Pleas of the Crown for Gloucester, p. xxxi. " Palgrave, Engl. Commonwealth, vol. ii. pp. cxxiii-iv; Stubbs, Const. Hist. i. 95. In Leg. Edw. Conf. 20 (19), it is said that what the English (Angli) call frithborgas the Yorkshiremen (Eboracenses) call tenmannetale. But what- ever may be the origin of this latter word, we only find it elsewhere as the name of a money payment. Thus Hoveden, iii. 242 : in 1194 Eiohard imposed a tax of two shillings on the oaruoate 'quod ab antiquis nominatur Temantale.' See Eievaulx Cartulary, p. 142: 'Danegeld id est Themanetele' ; compare Whitby Cartulary, i. 196-7. May not the word bear a trace of the Danish house-carls or theningmen who had to be paid for ? In northern charters the word occurs commonly enough in the list of immunities. CH. III. § 4. J The Tithing. 557 time they acquire the name of the sheriff's ' turn.' But though Henry II. in the Assize of Clarendon (1166) had strictly decreed that this business was to be in the sheriff's hands', we find in the thirteenth century that there are large masses of men who never go near the sheriff's turn. They are the men of lords who rightfully or wrongfully exercise the franchise that is known as 'view of frankpledge,' that is to say, they them- selves in their own courts see that their tenants are in frankpledge and take the profits which arise from the exercise of this jurisdiction ; sometimes they allow the sheriff to be present, very often they exclude him altogether. Of all the franchises, the royal rights in private hands, view of fi-ank- pledge is perhaps the commonest. The strict theory of the law seems to have required that all Attendance the frankpledges should attend the view; but as a matter of^ew.^ fact it was usual for none but the chief pledges to attend; often however they had to bring with them a sum of money which was accepted in lieu of the productiqn of their tithings. Thus a system of representation of the tithing arose and very naturally it became bound up in intricate combinations with the representation of the township by its reeve and four men. Especially when the ' view ' is in private hands we often find that the duty of presenting offenders is performed by the chief pledges, who thus form themselves into a jury. Under the influence of the Assize of Clarendon the duty of producing one's fellow-pledges to answer accusations seems to have been en- larged into a duty of reporting their offences, of making presentments of all that went wrong in the tithing. Of the means by which men were ' brought into tithings,' Constitu- into the groups of ten or a dozen, we know very little. Could ttthinga. a youth choose his tithing? Could a tithing expel or refuse to admit a member whose bad character would make him burdensome ? The answer to these and to similar questions seems to be that the men who had to be in tithings were generally (according to the ideas of the thirteenth century) unfree men. They were brought into tithings by the lord or 1 Ass. Clarend. o. 9. There is to be no one within castle or without, no, not even in the honour of Wallingford, who shall deny the sheriff's right to enter his court or his land to view the frankpledges ; all are to be under pledges and are to be placed in free pledge before the sheriff. 558 Jurisdiction and Com/munal Affairs, [bk. it. his steward and they could not resists We may find a chief pledge paying a few pence to his lord in order that a certain man, presumably a bad subject, may be removed from his tithing. The chief pledge seems to have exercised a certain authority over his subordinate pledges ; they owed him some obedience^ and probably in the southern counties the tithingman of the tithing, the borhsealdor of the borh, was also normally the reeve of the vill ; but it is only in legal legends that he has any judicial powers'. In passing, we may say that, differing from an opinion that is now very generally held, we are inclined to regard the frankpledge system as an ancient, an Anglo-Saxon, institution, which in the course of its long history has been closely connected with the growth of seignorial justice and the de- pression of free men to the condition of mllani; but for the present we will turn to see what seignorial justice is like when it has attained its full stature. § 5. Seignorial Jurisdiction. Eegaiities According to the legal theory of the thirteenth century rights. seignorial jurisdiction has two roots — (1) the delegation of royal powers, (2) the relation between lord and tenants. Jurisdic- tional rights are divided into two classes. On the one hand there are the franchises and regalities (Ubertates, regalia) which, at least according to the opinion of the king's lawyers, can only exist in the hands of a subject by virtue of a grant from the crown. On the other hand there is jurisdiction involved in the mere possession of a manor or in the mere fact of having tenants; we may briefly characterize it as being of a civil, non-criminal kind. Bracton in the statement of his general theory of temporal justice seems to neglect it. In this we can 1 Sometimes the tithingman was elected by the men of the tithing. Bot. Hund. i. 212 (Kent): 'J. B. distrinxit J. de E. ut esset borgesaldre sine eleotione borgae suae. ' In some boroughs, e.g. Norwich, men who were in every sense free men were in frankpledge, see Hudson, Leet Jurisdiction in Norwich (Selden Soo.) p. Ixvii. But on the plea rolls of some counties, e.g. Staffordshire, we find entries which state that a man is not in frankpledge ' quia liber. ' ^ Select Pleas in Manorial Courts, p. 169. 3 Leg. Edw. Conf. 26 (28). This in all probability is mere fable. CH. III. § 5.] Seignorial Jurisdiction. 559 not follow him. As to the franchises he speaks very positively. Who can bestow them? The king and only he, for all justice and judgment, all that concerns the peace, all coercive power are his. Those things therefore that concern jurisdiction or that concern the peace belong to no one, but only to the king's crown and dignity, and they can not, be separated from the crown, since they make the crown, for the king's crown is to do judgment and justice and keep the peace. Such jurisdictional rights can not be held by a private person ' unless it be given him from above.' Then he lays down two maxims: — 'luris- dictio delegata non potest delegari ' : — ' Nullum tempus occur- rit regi'.' Two very wholesome maxims ; but it is clear that they have Acquisition not been observed and we may even doubt whether the kings regaUtiea. themselves have made consistent and strenuous efiforts to main- tain them. Our information about the law of franchises must be drawn for the more part from pleadings of Edward I.'s reign; but these, despite their wealth of detail, are not very satisfactory materials, or rather they disclose a state of things that is not very easily described. Early in his reign Edward began a vigorous attack upon the franchises. First by means of the inquests, the results of which are recorded on the Hundred Rolls, he ascertained what franchises were actually exercised, and then he sent out his judges and his pleaders to demand by what warrant {quo waranto) the lords were wielding these powers. His advocates took up the highest ground, propounded the most extreme doctrines, doctrines which would have destroyed a large half of the existing ' liberties.' But the king did not proceed to extremities ; very few judgments were given; he had gained his main object; any further growth of the franchises was stopped for ever; in 1290 he consented to a compromise. A continuous seisin for the last hundred years — the coronation of Eichard I. was chosen as a limiting date — was to be a sufficient answer to the inquiry quo waranto^. Thus we hear no statements of the law which can claim to Theories of be impartial. On the one hand we have the precise doctrines lasers, of the king's law officers, on the other hand a vast mass of facts which prove that these doctrines if they are not new have long been ignored. Let us see how far the royal advocates can go. 1 Bracton, f. 55 b. ^ Select Pleas in Manorial Courts, pp. xviii-xxii, IxxvH. 560 Jurisdiction and Communal Affairs, [bk. it. The bishop of Ely is defending his egregious liberties by charters of Edgar, the Confessor, the Conqueror, and Henry III. Gilbert Thornton to all his other objections adds this — ' Allow for one moment that all these liberties are expressly mentioned in the charters, still the king has an action for revoking them, since he has never confirmed them. As regards the franchises' of his crown each successive king is to be deemed an infant. His case is like that of a church. Each successive rector can revoke the lands of the church if they have been alienated by his predecessor'.' That the franchises are inalienable is con- stantly asserted. Robert FitzNicholas took upon himself to grant the view of frankpledge of two thirds of a vill to John Giffard; this, says Thornton, is a cause of forfeiture; he was bound to exercise the jurisdiction in person and not to give it to another^ If you urge long seisin, you do but aggravate your offence'. Your usurpation can not have had an innocent beginning; every one, says Bracton, must know that these things belong to the crown^ It is plain to all, says Thornton, that upon the Conquest of England every jurisdiction was united to the crown^ : — this historical theory is of great use when Anglo-Saxon charters are propounded. Even if for a moment it be allowed that there are cases in which user can beget title, this concession can only be made in favour of those whose ancestors came in with the Conqueror; no churchman can possibly take advantage of it°. And if it comes to charters the king is entitled to the benefit of every doubt ; he is not to be ousted of his rights by ' obscure and general words '.' He is ' P. Q. W. 308. Thornton makes the same point against the abbot of Eamsey ; P. Q. W. 305. ' P. Q. W. 86 ; see also 10, 87, 88, 105, 242. 3 P. Q. W. 4. i Bracton, f. 56. 5 P. Q. W. 4, 259, 303. " This curious argument is used by William Inge against the abbot of St Mary's, York ; P. Q. W. 122 : by Gilbert Thornton, Ibid. 671 : and more than once by Hugh Lowther, Ibid. 676-7. Thus against the bishop of Coventry, Lowther says ' The bishop can not show that any of his predecessors came with the Conqueror and obtained these liberties by [the] conquest (per coTiquestum), for the bishop and all his predecessors were, as one may say, men of religion {quasi religiosi, i.e. in the same category as professed monks) and they and their church were enfeoffed by others, and therefore they cannot claim these franchises from time immemorial.' These arguments about liberties obtained by conquest afforded some ground for the earl of Warenne's famous assertion that the sword was his loarantus. 7 P. Q. W. 305. CH. III. § 5.] Seignorial Jurisdiction. 561 the giver and it is for him to interpret his gift*. 'Liberties' are easily forfeited by abuse or by mere non-use. The grantee must take the first opportunity that occurs of getting seisin ot the franchise and must maintain his seisin. In Edward I.'s day he loses his right unless he claims it before the justices in eyre whenever they come round. Unfortunately the forfeited liberties are but too easily restored in consideration of a sum of money. It is this that prevents a modern reader from heartily taking the king's side in the great controversy. Despite all that is said about the inseparability of justice from the crown, the king sells liberties and compels the purchasers to buy them over and over again. We may now glance at the franchises, first mentioning y*^^°" ( briefly those which have least to do with justice and then franchises. speaking more at length of the jurisdictional powers. (i) Fiscal Immunities. The grantees, their men, their fiscal im- lands and possessions are freed from every imagmable form of taxation 'imperial and local' — if we may use such modern terms: — from all scots and gelds, danegelds, neatgelds, horn- gelds, footgelds, woodgelds, felgelds, scutage, carucage, hidage, tallage, aids for the king, aids for the sheriff and his bailiffs, wardpenny, averpenny, hundredpenny, tithingpenny, borgh- halfpenny, chevage, headpenny^; further, from all indirect taxes : — ^from passage, pontage, peage, lastage, stallage, vinage, weitage, toll ; further from all fines and amercements imposed upon the shires and the hundreds, in particular from the murder fine. (ii) Immvmities from personal service. They are freed tomuni- from military service, ' from hosts and summonses to the host,' personal from suit of court, from all shires, trithings, lathes, wapentakes and hundreds, from jury service, from tithings and frankpledge, from the duty of repairing castles, parks, roads and bridges, from the duty of carrying the king's treasure and victuals, from carriage and summage and navige. (iii) Immunities from forest law. These are usually the immuni- subject of special bargains and are not thrown about with a forest law. 1 Braoton, f. 34 § 3. 2 Thus the charter of 1199 for the Templars (Eot. Cart. p. 1) specially mentions, besides the minor local dues, aids of the king and of the sheriffs, hidage, carucage, danegeld, homgeld, scutage, and tallage. See also the charter of the Hospitallers, ibid. p. 15, and that for Sempringham, p. 18. P. M, 3^ powers. 562 Jurisdiction and Communal Affairs, [bk. ii. lavish hand; but sometimes the grantees succeed in freeing themselves, their lands, men and dogs from some or all of the forestal regulations, from the swainmotes, regards of the forest, amercements of the forest, ' waste and assart'.' The immunities shade off into licences, such as that of keeping eight brachets and a pair of greyhounds and hunting the fox, the hare and the wild cat in the king's forest of Essex ^. Fiscal (iv) Fiscal powers. The king, it will be remembered, from time to time grants to his tenants the power of taking an aid or a scutage from their tenants, and though these imposts may be regarded as feudal services, yet in practice they can not be " collected without a royal writ and in course of time even theory seems to require that the king should have granted his tenants in chief 'their scutages' and given them leave to levy their aids'. So the king's licence is needed if the holder of an ancient demesne manor will tallage his tenants : — this however seems but an exception from the general rule that royal justice will not prevent a lord from tallaging his villeins. A grant of a fair or a market usually carried with it some power of taking toll and sometimes it was accompanied by protective pro- hibitions which gave the grantees a temporary monopoly*. Again, the king can make a permanent grant of the produce of a tax and of the right to collect it ; thus John gave to the bishop of Ely and his successors the patronage over the abbot of Thorney and 'the aid of sheriffs and their bailiffs from all the men and tenements belonging to the said abbey,' so that thus the bishops became entitled to the due known as the sheriff's aid°. It is by no means improbable that a similar result was sometimes produced by mere words of immunity. When the king frees an abbey from scots and gelds, do the tenants, free and villein, of the abbey always get the benefit of this exemption purchased by their lord's money, or do they not now have to pay to the abbot what formerly they paid to the royal officers ? John had granted that the monks of Ramsey 1 See the charters of the Templars and Hospitallers and the Peterborongh charter, Bot. Cart. 82. 2 Bot. Cart. 49. s gee above, pp. 253, 331. * See e.g. Bot. Cart. 56: grant of an eight days fair to the monks of Lenton; they may take toll ; no one is to buy or sell in Nottingham during the eight days. s Eot. Cart. 204 (a.d. 1215). OH. III. § 5.] Seignorial Jurisdiction. 563 and theii" demesnes and all the men of their demesnes should be free of all aids and demands of sheriffs and reeves and bailiffs' ; but at a later time we find the tenants of the abbey paying ' sheriff's aid ' and doubtless they pay it to the abbot, and thus a tax becomes something very like a feudal service^. If we may infer that the same process had been at work for a long time past on a large scale, one of the sources of feudalism is here laid bare. (v) Jurisdictional Powers. Aroyalcharter of the thirteenth Juris- century very often, though by no means always, declares that powers. the donee of the land given or confirmed by the charter and his heirs are to hold the land with certain rights or powers which are described by English words. Of such words the commonest are ' cum saca et soca et toll et theam ' ; often ' infangenethef ' is added; more rarely 'utfangenethef also; while in some cases there is a long list'. The less usual of the words are the more easily intelligible; primarily they denote certain crimes, certain punishments, certain modes of procedure ; in the charters they mean that the donee is to have jurisdiction over these crimes, power to inflict these punishments and make profit thereby, power to use these modes of procedure. Thus he is to have housebreaking, breach of a special peace, waylaying, receipt of outlaws, the wites for bloodshed, for fighting, for flying from battle, for neglect of military service, for fornication, for suffering an escape from prison, he is to have the ordeal and the judicial combat. The list is careful to include just those crimes which Cnut had declared to be reserved pleas of the crown, those jurisdictional rights which the king has over all men unless he has seen fit to grant them away by express words*. Under the old law a grant accompanied by these words would seemingly have stripped the king of all jurisdiction, except, it may be, a certain justice of last resort. And the Norman Conquest made no immediate change ; the criminal law revealed by Domesday Book is of the old type and the 1 Cart. Earns, ii. 62 (a.d. 1202). " Cart. Earns, passim, e.g. i. 456 : ' et sciendum quod omnes terrae hydatae praeter dominicum et terras liberorum daut ad auxilium vicecomitis ; terris autem liberorum remisit . . Hugo Abbas . . . praedictum auxilium.' 3 Charter of the Hospitallers (1199), Eot. Cart. p. 15: 'et hamsoka et grithbrige et blodwita et fiothwita et fliotwita et fredwita et hengwita et leirwita et flemeneafrith et murdro et latrocinio et ordel et oreste.' * Cnut, II. 12-15. 36—2 564 Jurisdiction and Communal Affairs, [bk. ii. pleas of the crown are just those which are included in the lists that are before us. But during the latter half of the twelfth century criminal law rapidly took a new shape ; the doctrine of felony was developed, capital punishment supplanted the old wites, and the specially royal processes of indictment and inquest were introduced. The result seems to have been that the powers conferred by these old terms became antiquated, the very meaning of the terms became disputable and those who wished for grants of high justice were compelled to purchase less dubious phrases. The most liberal grants were not unfrequently qualified by reservations the meaning of which grew ampler as time went on. The king declares that he reserves nothing for himself 'except those things which belong to the king's crown,' ' except justice of life and member,' ' except murder and treasure,' ' except murder, treasure trove, rape, and breach of the peace'.' As the king's peace extends itself, as all serious crimes become felonies and deserve punishment of life and member, the reservation grows at the expense of the grant. Little in the thirteenth century was to be got out of these ancient words beyond the proceeds of a few minor offences, scuffles, affrays, fornication. Thus infavgenethef might give one power to hang one's own thief if caught within one's own territory, and utfangenethef the power to hang him wherever caught, but it seems essential that he should be caught 'handhaving or backbearing,' that is with the stolen goods upon him and that he should be prosecuted by the loser of the goods. The manorial gallows was a common object of the country, but under these restrictions it can not have been a very useful object^ ' Eot. Cart. 2, 20, 22, 32, 33. " A comparison of the Exposiciones Vocabularum or glossaries of Anglo- Saxon law terms will be found in the forthcoming edition of the Bed Book of the Exchequer. It is clear that in the thirteenth century there was but little agreement as to the meaning of these terms, whence we may draw the inference that they had become of smaU value. Thus Henry III. granted a charter to the Abbot of Colchester for the purpose of explaining the words frithsolcne, infangenethef and flemenefremth contained in a charter of Bichard I. ; see Eot. Cart. Introduction p. xxxvii. There was much doubt as to what was meant by hengwite and as to the exact limits of the right of utfangenethef. In cases of quo waranto the king's advocates are fond of puzzling their adversaries by asking them to explain what they mean by these old words. Thus the Prior of Drax is asked to construe sak sok tol et them ; ' et Prior nichil dicit ' ; P. Q. W. 211. Still on examination of the Charter Bolls it will appear that these words CH. III. § 5. J Seignorial Jurisdiction. 565 Now these antique words occur in two different contexts. Contrast , f. . , (. 1 1 .- I between At first Sight we may even say that two formulas which seem immunities to us conti-adictory are used as though they were equivalent, powers. Sometimes the charter says that the donee is to hold his land with bloodwite, fightwite and so forth ; more often that he is to hold it free and quit of bloodwite, fightwite and so forth ; yet we can hardly doubt that the two phrases mean one and the same thing. To declare that a lord is to hold his lands free of bloodwite is to declare that if blood be shed by his tenants the king will not be entitled to the wite or fine; this however seems regarded as implying as matter of course that the lord will get the wite, for crimes are not to go unpunished. The principle thus brought out is one that may be of service to us hereafter when we deal with a time the charters of which are couched in yet vaguer terms : — to free a lord's land from royal jurisdiction or from the exactions which are appurtenant to the exercise of royal jurisdiction is to create a seignorial jurisdiction. The king's lawyers protest against this principle, protest that a grant of immunity from frankpledge is not equivalent to a grant of view of frankpledge ; but the lords refuse to recognize the distinction and may well have history upon their side'. were not thrown about quite at haphazard ; thus utfangenethef was much rarer than infangenethef. William Marshall makes a liberal grant of jurisdiction to Tintern Abbey, but expressly reserves utfangenethef to himself; Monast. v. 269. There were many ambiguities of which the king's lawyers could take advantage ; thus if a grant were made of ' murder, ' they could say that this did not give jurisdiction in cases of homicide, but merely gave an immunity from the murder fine. Such an interpretation however could not fairly be set upon the word in all oases, e.g. when Henry II. gave the Abbey of Beading 'omnem iusticiam de assaltu et furtis et murdris et sanguinis effusioue et paois infraotione quantum ad regiam pertinet potestatem'; Monast. iv. 40. ' Thus compare in Eot. Cart, the charters for the Temple (p. 1), the Hospital (p. 15), Christ Church, Canterbury (p. 24), St Edmunds (p. 38), which convey grithbrice etc., with those for Dereham (p. 22), Fontevraud (p. 72) Norwich (p. 81), which declare that the land is to be free of these things. Sometimes we find an intermediate formula, e.g. in the charter for Sempringham (p. 18) ; the land is to be held free of gritbriche, blodwite etc., and the monks are to have flemenesfrit etc. The point to which attention is drawn is well illustrated by the charter for the bishop of Salisbury (p. 66) ; the land is to be exempt from blodwite etc. and frankpledge ; but on this follows the qualification ' but so that the view of frankpledge be made in the bishop's court before our Serjeant.' The natural result of declaring the bishop's land to be free of frank- pledge would be to give the bishop the right of holding the view without the interference of any royal official. The bishop of Winchester is asked by what « 566 Jurisdiction and Communal Affairs, [bk. ii. Sake and But the four Commonest words are the most interesting. and team. In the thirteenth century there is already much doubt as to their meaning and among the lawyers we see a strong tendency to make them mean as little as possible. Thus toll is sometimes the right to take toll, sometimes the right to be free of toll ; but often it is merely the right to tallage one's villeins, a right which every lord of villeins enjoys without the need of a royal grant'. Then team is taken to mean the brood, the ofifspring, the ' sequela ' of one's villeins^ ; but this we may be sure is a mistake. Apparently it ought to mean the right to hold a court into which outsiders may be vouched as warrantors, or, to use a more technical term, the right to enforce a 'foreign voucher '. The word sac (or, as we had better spell it, sake), the Anglo-Saxon sacu, the modern German Sache, means thing, cause, matter; the glossarists of the thirteenth century have not forgotten this and refer to the English phrase 'for which sake ' ; in legal language it means a cause, a matter, an action, or as the Germans say Rechtssacke ; a grant then of sake should be a grant — by a very general term — of jurisdiction'. Most important of all is soke or soken, which is used as a very large word to denote justiciary rights and the area within which they are exercised. Sake and More must be said of these words in another place. Here soke ™ , , , , cent. xiii. we have only to observe that in the thirteenth century the words sake and soke are regarded as describing jurisdiction, but jurisdiction of a kind" that every lord has although he has no such words in his charter and although he has no charter from warrant he claims view of frankpledge; he produces a charter aoquitting his lauds of frankpledge : the king's advocate insists that this does not give him the view and craves judgment: judgment is reserved; P. Q. W. 83. The same point is taken against the Hospitallers, Ibid. 92 : and against the Prior of Coventry, Ibid. 242 : but in each case judgment is reserved. ' Leg. Edw. Conf. 22 : ' Tol, quod nos vocamus theloneum, scilicet liber- tatem emendi et vendendi in terra sua' ; P. Q. W. 275 : ' Thol, quite de toun doner' ; P. Q. W. 511: 'Tol pro voluntate sua tallagium de vUlanis suis.' 2 P. Q. W. 275 : ' Them, aver progeny de vos humes' ; Fleta, f. 62 : ' Them acquietantiam amerciamentorum sequelae propriorum suorum.' s Hoveden, u. 242: ' Sackke, iuterpretatur iurisdictio, id est, curt et justise.' Camb. Univ. Lib. MS. Dd. vii. 6. f. 63 b: ' quia sake anglioe encheson gallice, et dicitur for wych sake pur quele encheson.' As to these words sake and sohen see Schmid, Gesetze, p. 653-4; Stubbs, Const. Hist. i. 203; Skeat, s. v. sake, seek, soke. At Manchester we find a payment called sakfe (sake-fee) : ' debet ei sakfe et sectam ad curiam' ; Boll for Paseh. 34 Hen. IH. (No. 140) m. 7. CH. III. § 5.] Seignorial Jurisdiction. 567 the king. Like the ' general words ' common in conveyances of a later date ('together with all houses, buildings, fixtures' and the like ) they do but serve to describe rights which the donee would have though no such words were employed; they give no franchise, no royalty, they merely point to the feudal or manorial jurisdiction which every one may have if he holds a manor, or which every one may have if he has tenants'. On the whole the prevailing doctrine seems to have been that sake and soke did nothing, that toll and theam did nothing, that infangenethef and utfangenethef merely gave the right to hang ' hand-having ' thieves, thieves taken ' with the mainour ' (cum manuopere), while the other old words could not be trusted to do much, though they might serve to define and possibly to increase the ordinary powers of a feudal courts The serious franchises of a jurisdictional kind were claimed view of under other words, or still more frequently were claimed by pledge, prescription. As the most serious, though the least exalted, we must reckon ' view of frankpledge and all that to view of frankpledge doth belong' — as the most serious, because it was extremely common. Occasionally we find a clear grant of 'view of frankpledge,' occasionally a grant of immunity from frank- pledge which may or may not have amounted to the same thing', and perhaps a grant of frithsoken,— the word is not very common — would have the same operation*. Far more com- monly a lord prescribed for the 'view,' and prescribed for it successfully. The right thus named comprised not merely the right to execute the law of frankpledge, to take the profits 1 P. Q. W. 245: 'sak, sok, toll et theam quae quidem verba habent referri ad our[iam] baron[is] et non ad visum franciplegii.' Keilway's Eeports, 150 b : ' chescun seignior de commen droit avera tiels choses.' ^ The use that could be made of such a word as hloodwite is shown by a case in P. Q. W. 381-2. The Earl of Lincoln claims to hold plea of all trespasses committed within his fee, and to proceed either at the suit of a plaintiff or ex officio, provided that the word bloodwite be not mentioned : if it is mentioned then his court does not meddle with the case any more, but leaves it for the county court. Thereupon he is asked whether he claims to punish a trespasser for wounds or bloodshed. Yes, he answers, provided that the plaintiff makes no mention of bloodwite. This from Edward I.'s day. " See above p. 565. An early instance is found in Henry II.'s charter for Hurley, Monast. iii. 434: 'Praeterea praecipio et firmiter defendo ne francos Buos plegios prior et homines sui alibi annuatim recenseant nisi in eadem curia S. Mariae et sua.' * P. Q. W. 235 (Abbot of Colchester), 275 (Abbot of Westminster) ; Bot. Cart. Introd. p. xxxvii. 568 Jurisdiction and Communal Affairs, [bk. ii. theuce arising and to thereby prevent the sheriff from meddling with one's tenants, but also the right to hold twice a year a court coordinate with the sheriff's turn, a police court, a court for the presentment of offences and the punishment of offences that fall short of felony. Towards the end of the thirteenth Leet. century the word leet (leta) — which seems to have spread outwards from the East Anglian counties — was becoming a common name for such a court, but to the last visus franciplegii remained the most formal and correct of titles. The lord who had this franchise claimed to swear in a body of jurors — often they were the chief pledges or heads of the tithings — and to put before them those same 'articles of the view' (capitula visus) which the sheriff employed in his 'turn.' The minor offences were punished on the spot by amercements which went to swell the lord's revenue. But probably the pecuniary profit was in the eyes of the lords a small matter when compared with the substantial power over their tenants that was thus secured to them. Twice a year the villagers, bond and free, had to report themselves and tell tales one of another, while no tale went outside the manor to the ears of jealous neighbours or rapacious officials. Probably the tenants also were gainers by the franchise ; they could manage their own affairs without the interference of ' foreigners'.' Theviu The king's advocates at times protested that only the and the j. r i i -n it- i • view. tenant ot a whole viH could enjoy this regality; the view, they say, must be a view for a vill, a view for a manor will not do, nor may a lord collect in his tithings tenants from divers vills^ ; again, he ought to have at least twelve whole tithings, twelve chief pledges, so that none may be punished without the oath of twelve'. These contentions were sometimes successfully urged and the theory which connects the view of frankpledge with the organization of a perfect township (villa integra) is an important clue to past history; but as a matter of fact the franchise had been subinfeudated and was sometimes exercised over collections of men resident on various pieces of land geographically detached from each other and connected only by the fact that they were all holden of the same lord. Thus 1 Eot. Cart. 80; John grants to the monks of Norwich -quod visus franci plegii fiat in curia eorum coram serviente uoatro sine admixtione hominum alieni homagii.' ■' P. Q. W. 85, 89, 90, 91, 293-4-5. » p. Q. w. 5, 6, 7, 293. CH. HI. § 5. J Seignorial Jurisdiction. 569 the view is sometimes divided between immediate lord and overlord ; John Engaine holds manors at Gidding and Dillington of the Abbot of Eamsey ; when the day for the view comes the Abbot's bailiff appears, hands to John's steward the articles of the view, and takes two shillings out of the proceeds of the day, while John keeps the rest\ In Rutland the Prior of the Hospitallers holds the whole vill of Whitwell, he has twelve tenants in Dreystoke, one in Gunthorpe, two in Martinstoke, one in Barnardshill and twelve ia Uppingham, for these he holds a view twice a year at Whitwell and Uppingham ^ ; tenants from several Bedfordshire villages have to go to the view held by Humphrey de Bohun at Kimbolton in Hunting- donshire'. The lord who has view of frankpledge usually has also ' the The assize , , . , pp., , of bread assize of beer, that is the power oi enforcing the general and beer, ordinances which from time to time fix the prices at which beer may be sold ; sometimes, but much more rarely he claims the assize of bread. We have an assize of bread from Henry II.'s reign*, another from John's^, another from Henry III.'s^, and the two latter deal with beer also. Out of beer the lords made some considerable profit. It is a common thing to find manorial jurors presenting as a matter of course that all the brewers, or rather breweresses, of the village have 'brewed against the assize' ; whereupon all of them are amerced ; and it is common again to find the king's advocates complaining that the lords inflict pecuniary amercements upon those hardened offenders who ought by rights to suffer in their persons by means of the pillory and the tumbrell. Pillory and tumbrell are the outward and visible signs of this jurisdiction, just as a gallows is the manifestation of 'infangenethef; the lord who does not keep proper instruments of justice, proper iudicialia, is liable to lose his franchise. Express grants of the assize of beer are very uncommon ; on the other hand very many lords claim it by prescription, while the lords of Northumberland, Cumberland, Yorkshire and Lincolnshire assert that they are not even bound to prescribe for it, since it is theirs by the common custom of 1 P. Q. W. 297. 2 p. Q. W. 672. 3 p Q. Tff 12. ■• Cunningham, Growth of English Industry, 2nd ed. i. 502. " Beg. Malmesb. i. 134. 5 Statutes of the Eealm, i. 199 ; Bracton's Note Book, i. 82. 570 Jurisdiction and Communal Affairs, [bk. ii. their counties'. We have therefore come upon the line which divides those seignorial powers which are deemed regalities from those which have their justification in the mere relation between lord and tenants, and we find it a vague, fluctuating ■line settled in some cases by local customs. Why the lords who enforce the assize of beer should not also claim the assize of bread, we do not know ; in neither case can we discover that the franchise has been expressly granted or expressly denied to them. High Very many were the lords who held the view of frankpledge, (the leet of later days) and the assize of beer; comparatively few were the lords who had more exalted jurisdictional powers. Still of such more exalted powers we find a gradually ascending scale. At the top are t)ie two palatinates, the county of Chester, the bishopric of Durham ; but below them stand lordships which are almost palatine and which will leave their mark on the map of England for many centuries. When in 1888 the day will come for remodelling the government of our shires the liberties of St Edmund, of St Etheldreda of Ely, of St Peter of Medehamstead will still be respected^. These together with the marcherships on the Welsh border are the most splendid instances. Sometimes the lord exercised the highest justice only within a small territory immediately surrounding his castle or his monastery, a leugata, banlieu, lowy. Among these powers we may notice the following : (a) Amerdamenta hominum. The lord has a right to the amercements of his men, even though those amercements are inflicted in the king's court. The amercements are paid into the royal exchequer and then the lord petitions that they may be paid out to him. (6) Gatalla felonwni et fugitivorum. The lord, though he does not try felons, unless they be handhaving thieves, gets the forfeited chattels of condemned felons and outlaws which ordinarily would belong to the king. With this is sometimes coupled the right to hang felons sentenced by the king's iustices. 1 P. Q. W. 125-6, 189, 191-2-3-6, 220, 226, 417, 599. 2 Local Government Act 1888, sec. 46; the eastern division of Suffolk (which represents the liberty of St Edmund), the isle of Ely, the soke of Peterborough, are still ' administrative counties.' CH. III. § 5.] Seignorial Jurisdiction. 571 (c) Retv/mus^ hrevium. This is a highly valued right. Within the lord's territory the ' return of writs' belongs to him — that is to say, if the sheriff of the county receives a writ ('original' or 'judicial') bidding him summon, attach or distrain one resident within that territory, or seize lands or goods, he must deliver that writ to the bailiff of the liberty who will execute the precept. Only in case the lord or his bailiff has been guilty of default and a second writ comes to the sheriff containing the clause ' quod non omittas propter aliquam liher- tatem,' will he be justified in entering the privileged precinct. (d) Some lords have, and prescribe to have, coroners of their own — a remarkable fact, since to the best of our know- ledge coroners were first instituted on this side of the limit of legal memory. (e) Some lords compel the king's justices in eyre to come and sit within their precincts and even to occupy a secondary position when they get there. They come there — such at least is the lord's theory — merely to see that the lord's court makes no default in justice, but the business of the court, even though it consist of pleas of the crown, is conducted by the lord himself, his bailiffs or justices. Sometimes the lord claims that for the time being he himself is iustitiarius domini Regis\ (/) Some lords have a civil jurisdiction within their territories which excludes the jurisdiction of the king's courts. If an action concerning anything within the precinct is begun before the Bench at Westminster the lord sends a bailiff to 'crave cognizance' of the cause and he is allowed it (petit curia/m suam et habet). Some of these highest powers were claimed by prescription ; High for example, the Archbishop of York declared that he and his claimed by predecessors had wielded them from time immemorial ; not one hot.""^ scrap of parchment did he deign to produce. He even claimed to coin money by prescription ^ And we may state as a general rule that just the very highest jurisdictional powers were seldom claimed by any other title. Occasionally a bishop or an abbot would rely on the vague, large words of some Anglo- Saxon land-book. But to do this was to make a false move ; ' In old documents retwmu is certainly commoner than returna. 2 Select Pleas in Manorial Courts, pp. xxv-xxvi; but it was the Abbot of Byland, not of Kirkstall, who required the king's justices to sit at Clifton. 3 P. Q. W. 198. 572 Jurisdiction and Communal Affairs, [bk. ii. the king's lawyers were not astute palaeographers or diplo- matists, but any charter couched in terms sufficiently loose to pass for one moment as belonging to the age before the Conquest could be met by the doctrine that the king was not to be deprived of his rights by 'obscure and general words.' For their markets and fairs, their chases and warrens, for amerciamenta hominum and catalla felonum the lords have charters ; but when they hold all the pleas of the crown, when they appoint justices and coroners, when thejr coin money, when they treat the king's justices as distinguished visitors to be 'accommodated with a seat upon the bench,' then they pre- scribe : — they and all their predecessors have done the like ; so they say and so the country says. The But apart from all franchises, a lord has a certain iurisdic- prot)Grlv feudal tion Over his tenants. This he does not claim by royal grant, tim^ "^ nor does he prescribe for it ; in its exercise we can not call him the king's delegate. Bracton knows the facts well enough, though his general theory of justice may ignore them. English law of the thirteenth century seems to have fully admitted the broad rule that every lord with tenants enough to form a court may, so far as the king is concerned, hold a court of and for his tenants. We say ' so far as the king is concerned '. Whether a lord enfeoflSng a tenant had to stipulate for suit of court if he wished to oblige the feoffee to serve as a doomsman is a dif- ferent question. Only late in the day was that question brought before the royal justices. Some seem to have held that an express stipulation was necessary if more suit was to be exacted than such as was necessary to enable the lord to exercise any regal jurisdiction with which he had been en- trusted. Others were of a different opinion. The matter was settled by the Statute of Marlborough (1267)1; — the lord who exacts suit to his feudal court must rely upon express stipula- tion or upon a somewhat brief prescriptive title '. This how- ever is a matter of comparatively little importance; the greater matter is that mere tenure gives to every lord, who has the means of exercising it, a jurisdiction over his tenant; his tenant is his justiciable. The feudal This jurisdiction, if the tenant be a freeholder, is not of a usually a very high order, nor is it very lucrative. It is but a civil manorial court. 1 Stat. Marlb. o. 9. ' Select Pleas in Manorial Courts, p. xlviii. CH. III. § 5. J Seignorial Jurisdiction. 573 jurisdiction, and it is by this time hampered and controlled by royal justice. What is more, the feudal court is very generally a manorial court, a court for a small district. Even though we can not at the moment explain the full import of this pro- position, we may dwell on it for a moment. We shall beg no question by saying that the manor usually is but a small space of ground, small, that is, when we compare it with the total amount of land which a great noble will hold ' either in demesne or in service'. A rich religious house may well have some twenty or thirty manors in demesne ; a lay noble will not have so many in demesne, but he will have some few in demesne and many more in service ; his honour will consist of a large number of manors scattered about in divers parts of England; of some few he will be the immediate lord, while others will be holden of him by his knights. Now the simple principle of feudal justice that we have lately stated would authorize such a lord to hold a court for his honour, to hold one court for all his immediate tenants ; or, again, if his tenants were widely scattered, he might hold several honorial courts, one, let us say, for his Kentish tenants, another in Gloucester- shire, another in Yorkshire. And thus between the actual occupant of a tenement and the king there might stand a whole hierarchy of courts. We have seen above how between Roger of St German who held land in Huntingdonshire and the king there were no less than seven mesne lords'. The principle which is now before us would in such a case permit the existence of seven feudal courts. That such was the law we can hardly doubt; no narrower principle will explain the facts. Very often the lord of a manor who had a court of his own was himself bound to do suit at his lord's court. The petition which the barons presented at the Oxford parliament of 1258 assumes that not seldom three feudal courts tower one above the other. Complaint is made that the Abbot of Peter- borough does not allow his freeholders to hold courts for their tenants, whereas this is sanctioned by law and custom through- out the realm. The Prior of Dunstable was compelled to concede that his burgesses might hold courts for their tenants. Furthermore, it seems to have been a common practice for a wealthy abbey to keep a court, known as a halimot, on each of its manors, while in addition to these manorial courts it kept a 1 See above, p. 211. 574 Jurisdiction and Communal Affairs, [bk. ii. central court, a libera curia for all its greater freehold tenants. And we may now and again meet with courts which are dis- tinctly called courts of honours. The rule then was not merely this, that the lord of a manor may hold a court for the manor ; but rather this, that a lord may hold a court for his tenants. Nevertheless it must be allowed that in the thirteenth century full advantage was not taken of the principle. Sub- infeudation had gone very far indeed and, as said above, the jurisdiction over freeholders was no longer very valuable; it brought the lord but little money and did not add much to his power. The feudal courts that we see in active work are for the more part manorial courts and the affairs with which they are concerned are mainly the affairs of tenants in villeinage, even the affairs of villeins. By way of historical clue this no doubt may be useful to us: — as a matter of fact feudal juris- diction seems intimately connected with the entities known as manors and these manors again seem to be intimately con- nected with townships. Still these links exist rather in the world of fact than in the world of law; the dominant legal principle is the simple feudal principle that tenure implies jurisdiction. The Abbot of Ramsey may bring to his court at Broughton his freehold tenants from. seven counties; the burgess of Dunstable may hold a court for his tenants'. Jnrie- Of these feudal, — they will in general be manorial — courts feudX ° we may now give a brief account ; first we will speak of their competence and then of their constitution. I. Civil Litigation, (i) Personal Actions. They entertain personal actions, at least when the amount at stake is less than forty shillings ; in particular, actions of debt, detinue, trespass and covenant. This jurisdiction seems to be considered as arising out of the feudal relationship between man and lord. On the other hand the action of replevin {de vetito namii) is regarded as royal and few lords claim to entertain it. Perhaps in theory the defendant ought to be an immediate tenant of the lord, but it is very likely that a lord often com- pelled any resident on his land to answer in his court, at all 1 As to all this matter, see Select Pleas in Manorial Courts, Introduction. A good instance of the abandonment of a honorial court is given in Winohcombe Landboc, i. 13 : ' Aliquando autem omnes liberi maneriorum solebant sequi curiam Winchecombe de tribus septimanis in trea. Et Abbas Johannes concessit quod facerent sectam Ulam in maneriis.' court. CH. III. § 5.] Seignorial Jurisdiction. 575 events when there was between them no lower lord with a court of his own. That the plaintiff also should be the lord's man would not be necessary. This jurisdiction was a useful, thriving reality. We may well find a manorial court which generally has some ten to twenty personal actions depending before it, and, as we shall see later on, these humble courts seem to have recognized certain causes of action for which the king's courts offered no remedy ; they gave damages in cases of slander and libel and very possibly they enforced agreements not made by sealed writings to which the king's courts would have paid no heed. (ii) Actions for the recovery of freehold land. Since the days of -Henry II. the rule had been that no one could be compelled to answer for his freehold without the king's writ'. On the other hand stood the rule, sanctioned by Magna Carta, that for a true proprietary action for land admittedly held of a certain lord, that lord's court was the proper tribunal, and though the king's judges and chancellors gradually impaired the force of this rule by the invention of new actions which were in effect proprietary, though they may have been nominally possessory, still throughout the thirteenth century and even in the fourteenth we hear of a good many actions begun in the feudal courts by ' writ of right '. Very seldom however, unless our books mislead us, were such actions finally disposed of in those courts ; to get them removed first into the county courts and then into the king's court was easy, and if the tenant (the passive party in the litigation) chose to reject the duel and put himself upon the grand assize, the competence of the lord's court was at an end. Hengham tells us that in his day the lords rarely asserted this jurisdiction over freehold land, for they could get little or no profit out of it ^. 1 See above, p. 126. " See Hengham Magna, cap. 3. See also Note Book, e.g. pi. 2fi, proceedings in the court of the Earl of Warenne carried as far as the first blows of the duel when a concord was made ; pi. 40, proceedings in the court of Margery de Sumery irregularly removed into the county court ; pi. 212, proceedings in the court of the Earl of Warenne removed into the county court ; ■ pi. 1436, lengthy and repeated litigation in the court of the Bp. of Bath ; in one instance the first blows of the duel were struck ; pi. 1847, proceedings in the court of the Constable of Chester stayed by a forged writ. Then see Y. B. Edw. II., f. 263 (Droit), 524 (Droit), 633 (Faux jugement), and 244 (Droit); in this last case a judgment was given in the lord's court. Though the process of removing a writ of right from the feudal court was easily accomplished, it involved an assertion 576 Jurisdiction and Communal Affairs, [bk. ii. (iii) Actions relating to customary or villein tenements. In all matters which concerned a merely customary title to land the lord's court was the only competent tribunal, for of the customary title the king's judges would know nothing. No royal writ was necessary when such a title was to be asserted. Still we see the lord's court doing strict justice in due form of law ; there is no formless arbitration, there are formal pleadings which are very strictly construed. Before the end of the century pleaders in manorial courts are making use of phrases which seem to have their origin at Westminster'; but all along they have been using technical phrases, tracing the descent of the customary tenement from heir to heir, al- leging 'seisin as of right,' alleging the taking of 'esplees', adding however at every turn ' according to the custom of the manor'.' The justice which the customary tenants got was strict justice ; it was not ' equity ' on the one hand, but on the other it was not ' the will of the lord '. (iv) Litigation between lord and man. That the lord could sue his tenant seems very plain indeed; the entries on a court roll consist very largely of such as show how the lord's bailiff made accusations against the tenants and how the lord recovered damages from them ; the tenants are charged with trespasses, or with breaches of the manorial custom^. It is late in the day before we hear any suggestion that such a course of procedure is inequitable since it makes the lord a judge in his own cause, and even then it is admitted to be 'the common course throughout the land '*. There is much to show that in the past one of the main uses of a feudal court had been that it enabled the lord that the lord had made default in justice, and to this the demandant pledged his oath. A Eegistrum Brevium in the Cambridge Libraiy, Mm. i. 27, describes the process thus —The demandant shall come with the bailiff of the hundred to the lord's court and bring in his hand his writ and a book [presumably the gospels] and shall stand on the threshold of the court and swear on the book that he will plead no further in that court by the writ which he holds in his hand, since the court has failed to do him justice ; and then he shall have a writ to the bailiffs and the sheriff stating that he has abjured the court and proved its default. 1 See The Court Baron (Selden Soc.) p. 119 where the form of a writ of entry ad terminum qui praeteriit is adopted. 2 Select Pleas in Manorial Courts, pp. 17, 34, 39, 123, 173. ' See the precedents in The Court Baron. " Y. B. 44 Edw. III. f. 19 (Trin. pi. 14). The same suggestion is made in y. B. 21-2 Edw. I. p. 157. The answer is ' The court is judge.' CH. in. § 5.] Seignorial Jurisdiction. 577 to compel his tenants to perform their services; this will appear from what has been said about the law of distress'. As to the objection that the lord is both judge and party, that fails, for the lord is not judge ; the defendant gets the judgment of his peers. On the other hand the lord can not be sued in his court ; this is true of him as it is true of the king. The proper feudal course for one who claims to hold land of X but can not get that land is to demand justice from X, and if this demand fails, to go to the court of X's lord. A lord distrained to answer in his own court is the most startling anomaly of the ancient demesne ^- II. Presentments. Even though the lord does not aspire to, or on this particular day is not exercising, the franchise of view of frankpledge, he often makes use of a procedure by way of presentment. Jurors are sworn in, sometimes twelve, but often less than twelve, to present offences. Perhaps in theory they have no business to present any offences which touch the king's peace, such as assaults, since in adjudicating on these the lord would be usurping a franchise, and ought to confine themselves to breaches of the manorial custom and invasions of the lord's proprietary rights. But it is difficult to maintain or even to draw the line, difiicult to prevent a lord from making his feudal court a police-court. Especially is this so when the tenants are personally unfree ; if the lord amerces a serf for drawing his knife, pilfering his neighbour's goods, using bad words, he is after all but demanding money which already is his own ; even if he puts the man in the stocks or turns him out of the vill, this, if it can be regarded as an act of justice, can also be regarded as an act of ownership. And so we find that the presentments are very miscellaneous : — A has assaulted B; C has abused D; ^ is a scolding wife; ^'s daughter has been guilty of fornication and so he owes a leyr- wite; G, a freeholder, is dead and his son owes a relief; H is the lord's nativus and has left the manor; / came late to the boon works; K keeps his dung-heap before his door; L has fished in the lord's pond; M sells sour beer; N puts more beasts on the pasture than the by-law allows him; rescued his impounded beasts ; and so forth. As a rule when there is no question touching freehold the accused seems to ' See above, p. 334. 2 See above, p. 369. P. M. 37 578 Jurisdiction and Communal Affairs, [bk. ii. get little chance of denying these charges, but is at once amerced ; sixpenny and threepenny amercements are common. III. Governmental Power and By-laws. Within certain narrow limits a feudal court might be not merely a court of justice but also an assembly capable of discussing and arranging the affairs of the tenurial group. To such an assembly the lord would in old times appeal when he wanted an aid from his military tenants^ or when he wanted them, or some of them on behalf of all, to go to the war''. But among the knights of an honour there was little communalism ; each in- dividual had his rights and his duties ; the one could not be impaired, the other could not be aggravated by any resolution of his peers. As to manorial by-laws we must speak here- after. Over unfree men, even over the free men who hold unfree lands, such by-laws, being made with the lord's approval, would have great power ; a breach of them might be punished by a forfeiture of the tenement ; a recalcitrant bondman might be set in the stocks; but to enforce by-laws against a free- holding free man was a far more diflScult matter. IV. Appellate Jurisdiction. When a great lord had many halimotes and one libera curia, difiScult cases which arose in the former were sometimes reserved for the latter. But the magnates had aimed at more than this. They had wished for an appellate jurisdiction, or rather a 'jurisdiction in error' over the courts of their tenants. Had the first principle, of feudal justice been allowed free play their demand must have been conceded. But it failed. If the court of the lower lord made default in justice the case could be removed at once into the county court and thence to the king's court, and none but the king's court could hear a charge of false judgment'. After a severe struggle these rules were established and maintained ; to their operation it is due that in England we hear very little of exalted feudal courts, courts of baronies and of honours. V. Conveyancing Business. In later ages the work of a manorial court will consist very largely in witnessing transfers of copyhold land ; the court roll will become a register of title for the copyholders. At the accession of Edward I., however, ' See above, p. 331. " Select Pleas in Manorial Courts, i. 49, 60; Mat. Par. Chron. Maj. vi. 438. ' Select Pleas in Manorial Courts, Introduction, p. Iviij. See also Eot. Cur. Begis, i. 357. CH. m. § 5.] Seignorial Jurisdiction. 579 the practice of keeping court rolls was still a new one, and though from time to time we may hear how a tenant in villeinage ' puts himself upon the roll ' by way of proving his title*, still on such rolls as we have seen entries of ' surrenders and ad- mittances ' are so few and so irregular that we can not believe that such entries were deemed of much importance. However, such power of alienation as the custom of the manor gives to the tenant in villeinage is often exercised in court. He can only alienate his tenement by rendering it up to the lord, and if this be done in open court the lord's acceptance of a new tenant will be witnessed by the men of the court, and their testimony will be useful at a future time. We have no reason however for saying that only in court could a lord give villein land to a new tenant or concede to a dead tenant's heir the tenement of his ancestor, for according to the law of the king's court the land was the lord's to do what he liked with. From an ancient demesne manor we may already hear how a tenant who was too ill to come to court made a surrender to the bailiff out of court to the intent that the bailiff might make the surrender in courts With the transfer of freehold land the court had in general but little to do; the tenants subinfeudated their tenements without going to the court, and in the thirteenth century they already thrust new immediate tenants upon their lord without asking for his cooperation'; still a careful lord would oblige the manorial jury to present deaths and descents which took place among his freeholders, in order that he might secure his reliefs, wardships and marriages. As homage had to be done to the lord in his proper person it was more usually done in his house than in the manorial court. And now as to the constitution of the court. There seems Conatitu- no reason why the lord should not preside over it in person, feudal and occasionally an abbot or prior would do this*. Often the ^^• cellarer of the abbey, himself a monk, would hold the courts ; president. but generally they were held by the lord's steward. Some abbots and other lords had allowed the stewardship to become hereditary ; they had enfeoffed knights who were to hold their lands by the serjeanty of stewardship. But before the end of 1 The Court Baron, pp. 121, 134. 2 Select Pleas in Manorial Courts, i. 126 (a.d. 1301). s See above, p. 826. * Durham Halmotes, i. pp. xi, xii. 37—2 580 Jurisdiction and Gommunal Affairs, [bk. ii. the thirteenth century the real work was falling into the hands of professional lawyers. Very great lawyers did not scorn it. A little later, in 1335, we find the prior of Christ Church ofFer- ing the office of steward to no less a person than Sir John Stonor, who had been for some years one of the king's justices'; he would not accept, but he was in no wise offended by, the proposal. And then when a weighty cause is to be heard in the court of Merstham the prior sends down one of his counsel to afforce the court ^. At an earlier time when the abbot of St Alban's had quarrelled with his knights he induced one of the king's justices, who had come to deliver the gaol, to preside over the feudal assembly under the ash tree'. And, as we have said before, men were beginning to write books which should teach stewards how to hold plea, and very technical books they are^ The As in the communal so in the feudal courts, the president suitors. jjg^g doomsmen at his side. When he is making the view of frankpledge, when (to use the terms of a later day) the court is acting as a ' court leet,' he — like the sheriff in his ' turn ' — seems to be the only judge : the procedure by way of pre- sentment is not easily compatible with the action of a body of doomsmen ; the view of frankpledge is a royal franchise, and for the time being the steward is quasi a royal justice °. But 'in the court baron the suitors are the judges' — this rule is well maintained throughout the middle ages. At their end it is said that two suitors will suffice ; we may well doubt whether so small a number would have been adequate at an earlier time^ Heriet, a justice of John's reign, seems to have demanded twelve'. How far any distinction was drawn in practice be- tween cases which affected free men and those which affected unfree men is a very doubtful question". In Coke's day it was said that the lord of a manor had one court, ' a court baron,' for his freeholders and another court, ' a customary court,' for ' Lit. Cantuar. ii. 84, 86, 98, 108. 2 Ibid. 272. ' Mat. Par. Chron. Maj. vl 438. * See The Court Baron (Selden Soc). » Braoton, f. 98. " Select Pleas in Manorial Courts, vol. i. p. Ixii. ; add to the references Y. B. 7 Edw. II. f. 238 : six suitors are not enough for a little writ of right in a manor on the ancient demesne. ' Munimenta GUdhallae, i. 116. 8 Select Pleas in Manorial Courts, vol. i. pp. Iz-lxxiii. CH. III. § 5.] Seignorial Jurisdiction. 581 his copyholders, and that in the latter the lord or his steward was the judge. Now over his unfree men of course the lord had, according to the law of the king's court, almost unlimited power ; short of maiming them he might do what he liked with them ; and every tenant of an unfree tenement was a tenant at will. Nevertheless in the court rolls and the manuals for stewards which come to us from the thirteenth and fourteenth centuries we cannot discover two courts or two methods of con- stituting the court. Freeholders and serfs are said to owe suit to the same halimote, and, so far as we can see, the 'curia' which pronounces judgment is always the same body. Occasionally distinctions of status are noticed. When the lord is holding a view of frankpledge, if he has many tenants he will sometimes copy the procedure of the sheriff's turn ; the presentments will be made in the first instance by villani, and will then be revised by a jury of twelve freeholders^ Sometimes, again, two bond- men will be appointed to affeer the amercements of the bond, while two free men will affeer the amercements of the free^. No doubt, again, a free man might have objected if among his doomsmen he saw a serf. No doubt, again, the theory that the villein tenements were held at the will of the lord was by no means idle; the lord could not be compelled to accept a new tenant against his will. Still, so far as we can see, when the lord's interests were not concerned or were not being actively asserted, the serf who sued or was sued in the manorial court got the same justice as that which the free man got ; he got in theory the judgment, not of his lord, but of a body of doomsmen who were at least his peers. We say that such a judgment he got in theory ; in practice the question became of less and less moment, for trial by jury gradually forced its way into the manorial courts. In strictness of law the lord could not compel his free men to serve as jurors in civil causes ; they and the king were agreed that none but the king should make them swear; but the lord could force his bondmen to swear, and very probably many a small freeholder would serve rather than quarrel with his lord. At any rate trial by jury made its way into these courts and trial by jury hardly leaves a place for the doomsman ; indeed in course of time the cry for a iudicium parium is (to the great distortion of history) supposed to find its satisfaction in trial by jury. If a serf gets the verdict of his 1 The Court Baron, pp. 100, 110. « Ibid. p. 101. manor. 584 Jurisdiction and Communal Affairs, [bk. ii. had land 'in hand'? must he have had tenant farmers and cottagers ? And what of ' a country seat'? Indefinite- In the thirteenth century the term manerium seems to term have been no more precise than the term 'estate' (as com- manor. monly used by laymen) is at the present day. It implied for example a certain geographical extent, neither too small, nor too large, and a certain geographical continuity; but the re- quisite size, the requisite continuity could not be defined. A manor in Cambridgeshire might well have a member in Suffolk; a manor in Kent could not have a member in Nor- thumberland ; but the exact degree of discontinuity that would have rendered the term inappropriate could not be fixed. Modern attempts to define a manor break down before this difficulty. Most, if not all, of them would suffer or even com- pel us to describe many a vast honour scattered about over all England as being a single manor ^. A typical Therefore to ask for a definition of a manor is to ask for what can not be given. We may however draw a picture of a typical manor, and this done we may discuss the deviations from this type. (1) The typical manor is geographically coincident with a vill ; the lord of the manor is also the lord of the vill ; manor and vill have one name ; the group of men, which when re- garded from one point of view appears as the villata or town- ship, if regarded from another point of view appears as a group of tenants ; all persons who have lands in the vill hold of one and the same lord. This gives unity to the manor, for the township has many public duties and the question whether a given acre is part of the vill or whether a given person is a member of the township, is, we may say, a question of public law. (2) The inhabited and cultivated lands of the manor are divisible into three portions; the lord holds land in demesne (in the narrowest sense of that term*) and on this stand his 1 Thus Soriven, Copyholds, 1. 1 : — 'A manor .... is the district . . . granted by the ancient kings of this realm to the lords or barons, with liberty to parcel the land out to inferior tenants, reserving such duties and services as they thought convenient, and with power to hold a court, (from thence called a court baron), for redressing misdemeanours, punishing the offences of their tenants and settling any disputes of property between them.' With such a definition as this we can not face the question — Why is it said of some tenant in chief that he has fifteen manors, no more no less ? ' See above, p. 344. CH. III. § 6.] The Manor. 585 house and homestead, and these are sometimes called pre- eminently the manerium ; then there are lands held of him by freehold tenure, and there are lands held of him by unfree or customary tenure. The arable portion of the manor usually lies in two or three great open fields, in each of which strips held by the lord, by the freeholders, by the customary tenants lie intermingled. There is also pasture land, much of which is generally held by the lord in demesne, but over it the tenants often have rights of common. The manor is an economic unit ; the lord's demesne lands in that manor are to a consider- able extent cultivated by the means of the labour services which are due from the tenants. (3) If the lord is a great man with several manors, even though these be contiguous, the accounts of each are separately kept; very generally each manor will have its bailiff and each manor will have its reeve. (4) Lastly, the lord holds a court for the manor ; if he is a great man, besides having a court for each manor, he may hold a central court for all his. principal freeholders, but each manor will usually have a court of its own. Thus we may regard the typical manor (1) as being, qua vill, a unit of public law, of police and fiscal law, (2) as being a unit in the system of agriculture, (3) as being a unit in the management of property, (4) as being a jurisdictional unit. But we have now to see that hardly one of these traits can be considered as absolutely essential to the existence of a manor. The most important is the connexion between the manor and the vill ; a consideration of this we must yet for a while post- pone, but this much may be premised that in very many instances the manor is not geographically coincident with a vill nor yet with any group of vills. We may begin by saying that the manor comprises a house, The or at all events a homestead, occupied by the lord, his servants hmise' or lessees. This from the etymologist's point of view appears as the very essence of the manor. The term manor (manerimn) is one of the many derivative words which have their origin in the Latin verb manere (to dwell) ; mansus, mansa (common in the Anglo-Saxon land-books), mansio, mansura or masura, messuagium are other examples, and it would seem that each of these has but slowly acquired a shade of meaning peculiar to itself. In our thirteenth century 'manor,' 'mansion' and 'messuage' are no longer convertible terms, though 'manor' is 586 Jurisdiction and Communal Affairs, [bk. ii. still occasionally used to signify just the lord's house or home- stead and no more ; the porta manerii is the door of the house or of the court-yard, the sitTis manerii is the site of the house together with its curtilage^; indeed in France the word manoir seems seldom, if ever, to bear a more extended meaning. Still the word is commonly used so as to include much more than a house, as, for example, when Bracton tells us that a chief manor may contain several sub-manors, that a maneriwn may be composed of several vills^ Sometimes a phrase seems to halt between the narrower and the wider meaning and shows us the relation between the two. When for example it is written that certain lands 'belong to' such a manor, a connexion legal and economic between them and a certain building is, or well may be, in the writer's mind. Occasionally the word ' hall,' which may have been of very common use in English speech, is used in the same way — ' he owes suit to the hall (aula) of Homingsheath,' ' it is customary land of the hall {aula) of Packenham'.' Occupation However, we dare not say that it is indispensably necessary manor that the manor should include a house occupied by the lord, ouae. Q^ ^ strictly personal occupation of course we can not insist. A vast number of manors were in the hands of the religious, and neither did the monks live on the manors, nor was it usual for a bishop or abbot to reside on all his manors in turn ; if he had three or four residences, this was enough ; but he might have thirty or forty manors ; the same must be true of the lay nobles. The centre of the typical manor is often a homestead or farmyard with but humble buildings placed under the charge of a bailiff, rather than a fine dwelling for the lord and his 1 See the instances given by Blakesley in Law Quart. Eev. v. 114-5. Select Pleas in Manorial Courts, p. 44 : ' et insuper ad portam manerii dioti domini .... hutesinm levavit.' Durham Halmote Rolls, p. 11 : ' homines de Dalton solebant habere communam cum animalibua suis a porta manerii versus viam de Hesilden.' Ibid. p. 36 : ' et portaa eiusdem manerii fregerunt.' E. H. ii. 578 ; the Abbot of G holds a manor in the viU of S which contains 5 acres, and he has in the same vill a garden which contains 3 acres, and he has there in demesne 8 score acres of land, 20 acres of pasture, and 4 acres of meadow, and he holds the said manor in almoin ; he has also freehold and servile tenants. At the present day such a name as Dale Manor is often enough the name of a house. " Bracton, f. 212, 434 b. 8 Bodleian, Suffolk Court EoUs, No. 3. It is not here implied that the Eng. hall, A.-S. heal, has any etymological connexion with Lat. aula; nevertheless the two words seem to have been treated as exactly equivalent. CH. III. § 6.] The Manor. 587 family. But it is doubtful whether we can even insist upon the homestead. Often we may find that the situs manerii has been let to a tenant at a rent ; we can not be certain that there are any longer any buildings upon it, and if there are, they are no longer occupied by the lord or his servants. A similar doubt must be suggested even as to the necessity Demesne of land held in demesne. Undoubtedly it is a normal feature of a manor that there should be land the fruits (not the rents but the actual fruits) of which come to the lord's garners ; the unfree, and often the free, tenants assist in the cultivation of this land, the raising of these fruits; the economist is apt to consider this as the essence of the manorial arrangement. But suppose that the lord, more or less permanently, parts with this land in exchange for a rent ; has he ceased to hold a manor, to be lord of a manor, to have the right to hold a court for all the tenants of the manor ? To all these questions we must answer. No, at least if the supposed alienation be no more than a lease for years. Towards the end of the century it was becoming common for the lord to let all the land that he had held in demesne ; but the farmer (firmarius) of the demesne land did not become lord of the manor, the lessor did not cease to be lord, the tenants still held immediately of him, he still kept a court for them and took its profits'. As to the effect of more permanent alienations, there may be more doubt, and we must distinguish the question as to the use of words from the question as to the existence of rights. If the lord of a manor enfeoffed another person with all the demesne lands, this gift, we may be sure, did not necessarily carry with it a lordship over the tenants of the free and unfree tenements, a right to all their rents and services, a jurisdiction over them. Men were very free to make whatever arrangements they pleased. We have, for example, an instructive verdict concerning the history of a Cambridgeshire vill. The earl of Gloucester holds Bottisham of the king. But his predecessors gave ' the whole manor of Bottisham with all lands, demesnes and tenements, 1 It is often difficult to say precisely what rights a lord conveys when he leases a manor. Thus, e.g. E. H. ii. 66, ' King Henry gave to Henry of Aldithley the manor of Ford, which at that time paid a rent of £30 ; Henry let the manor to all the men of the manor at a rent of £60, which the manor now pays to J. of Aldithley, who holds the manor in chief of the king and pays £12 a year for the said manor to the king.' 588 Jurisdiction and Communal Affairs, [bk. ii. villeinages, coterells, pastures, meadows, mills, franchise of bull and ram and all appurtenances and easements to two houses of religion, to wit, a moiety to Anglesea Priory and a moiety to Tunbridge Priory, saving to himself and his successors the free rents of the free tenants in the same vill, and saving suit of court from three weeks to three weeks, and saving the homages and reliefs of the free tenants and wardships and escheats and all pleas.' The result is that the prior of Anglesea has 200 acres and 6 villeins with 15 acres apiece and 5 coterells, the prior of Tunbridge has a like holding, while the earl has some 40 freehold tenants for whom he holds a court; the view of frankpledge for the whole vill is in his hand^ Here we have the lord of a manor giving half his demesnes and half his villein tenements to one priory, half to another, but re- taining to himself an immediate lordship over the freeholders, his right to receive their rents and to hold a court for them. An endless variety of such arrangements was possible, the only legal limit being that which would have protected freehold tenants against any aggravation of their services. Probably, while the labour services of the villeins remained uncommuted, a lord did not often part with the whole, or nearly the whole, of his demesne land without giving along with this a right to those services which his villeins had been accustomed to do on that land ; to have done so would have been to lighten or even to abolish the labour services ; but when those services were commuted into money dues, there was nothing to prevent the lord conveying away his demesne and retaining his immediate lordship over the villeins and his right to their rents. The To give positive proof that no freehold tenants were tenants, necessary to constitute a 'manerium' is difficult, for as already said we may turn over many pages of the Hundred Rolls without seeing that word, and certain it seems that towards the end of the thirteenth century a lord seldom had many villein tenants without having just a few freeholders inter- mingled with them. Still instances may be found in which a lord has a considerable group of villein tenants with whom no freeholder is associated, or with whom but one is associated. Thus turning to the abbot of Gloucester's estates, we find that in village after village in which he has demesne land and many tenants in villeinage and in which he holds a court with 1 E. H. ii. 487. CH. III. § 6.] The Manor. 589 villein suitors, he has no freeholders, or but one freeholder; yet in these villages he has maneria^. Again, a comparison between the surveys of the thirteenth century and the earlier documents seems to show that many of the freehold tenancies are of modern origin. As regards two of the abbot of Peter- borough's manors we may compare the Hundred Roll with the ancient Black Book. On the ' manor' of Alwalton, according to the younger of these documents, there are two libere tenentes, the one is the parish parson, the other holds but a messuage with a rood and three acres; the Black Book tells of no freeholders. It is so also on the ' manor' of Fletton ; the Black Book mentions no freeholders ; the Hundred Roll mentions two, one of whom gets his land from his grandfather, who was steward in the abbot's hall^ Indeed in the Black Book we come across vill after vill in which the abbot has many villeins and no freehold tenant. The theory that to constitute a manor freehold tenants are necessary will allow to some mighty lords of the twelfth century very few manors indeed. One limit may perhaps be set to our scepticism : — there Tenants in must be villein tenements, there must at all events be some " ®™"se. tenants holding of the manor. As a matter of fact this probably was so. In the then state of agriculture a tract of any considerable size held in demesne almost of necessity implied a group of persons whose tenure of other lands obliged them to aid their lord in his husbandry. Still when we find the word ' manor' used, as sometimes it undoubtedly is, to denote just the lord's house and homestead, when we consider the close connexion that there is between 'manor,' 'manse,' ' mansion,' ' messuage,' we shall be apt to doubt whether in the past there has been any severe rule of fashion, to say nothing of law, about the use of these terms. Again, we are not able to produce any example from the thirteenth century of an estate which is called a manor or of an estate which seems likely to be called a manor which has no villein or customary tenements bound up in it or with it; still we should not be 1 Cart. Glouc. iii. 103, et passim. See also in E. H. ii. 695, the Templars' estates at BradweU ; Ibid. 714, Sampson Foliot holds the manor (expressly so called) of Alhury but has no free tenant ; Ibid. 715, the Templars' estate at Merton ; Ibid. 723, the Templars' estate at Littlemore, they have no freeholder, the customary tenants attend their court. " B. H. ii. 638-9 ; Chron. Petrob. (Camden Soc), 160, 166, 590 Jurisdiction and Communal Affairs, [bk. ii. surprised to find that if the lord of a manor enfranchised all his villein tenements he still was deemed to hold a manor; he might get a good deal of occasional labour for his demesne lauds out of his freeholders, so that their lands would still be knotted to his demesne lands so as to form an economic unit. Nor have we any warrant for supposing that this state of things could be produced only by enfranchisement. In the. account of eastern England given in Domesday Book it is possible to find ' maneria' which have no tenants who are below the rank of sokemen, and some of these manors may still have been 'manors' in the thirteenth century, manors with freehold tenants, but without tenants of a baser kind^. The Again, to turn to another point, we hardly dare say that a coSr person who has villein or customary tenants must have a manor or must have a court. What can we make of the very numerous cases in which a man has but three or four such tenants ? Does he hold a court for them ? Let us examine the vill of Upton in Huntingdonshire: — A has a messuage and half a carucate in demesne and the sixth part of a wood and 'the sixth part of one free tenant,' John the Freeman, who pays him 8d and holds altogether one carucate ; and A has also one virgate and a half in villeinage which three villeins hold of him, each of whom pays him 10s. and merchet, and he has ' the sixth part of two villeins,' and each of them pays him 19d. for the sixth part of one carucate ; and he has two coterells each of whom pays him 3s. Sd., and ' half one coterell ' who pays him lOd, and 'the sixth part of two coterells' each of whom pays him 6d: — B and G and D have estates similar to A's and there are some irregular holdings ^ Whether A would have said that he had a manor we do not know, but we can hardly believe that he kept a court for his tenants and fractional parts of tenants. Obviously in this case there has been a descent among coheiresses : part of the estate that descended to them has been partitioned, part remains unpartitioned. But similar results might be caused by subinfeudation. 1 In D. B. it is easy to find numerous eastern maneria in which the villani and bordarii are very few when compared with the sokemanni ; it is not so easy to find a manor peopled only by sokemen ; but see e.g. D. B. i. 342 b : ' Manor. In Sudcotes Azor has 15 bovates for geld ; land for 4 teams. There are now there 16 sokemen having 3 teams and 40 acres of meadow.' 2 K. H. ii. 620. OH. HI/ §6.] The Manor. 591 Once upon a time the king held Great Wilbraham: he gave half of it to Nigel the Chamberlain, who gave half that half as his daughter's marriage portion; this quarter of the vill is now held by Robert de I'lsle, who has 10 customary tenants. Nigel gave away another piece to the Abbot of Warden ; the residue of his moiety descended to his five daughters. Then the king gave a quarter of the other moiety to one Picot, and the remaining three-eighths to Hubert de Burgh, who gave them to the Templars. The consequence is that the custumarii of Wilbraham are divided among many lords, one of whom has but three'. A case may be found in which a man has a few freehold tenants and just one customary tenant (a servusy, many cases in which he has just two or three villeins and two or three cottagers. In some of these cases we can not easily believe that the villeins are protected by any court or by any custom. When a great lord detaches a few of his customary tenants to form an endowment for some retainer, they can hardly keep their old condition; in course of time they must rise or they must fall: their services being commuted into money they may make good their claim to be freeholders, or on the other hand they may become tenants at will in the strictest sense of the term. But some startling warnings against generalization come to us. A lord might care to exercise all seignorial rights over but a handful of cottagers. In Headington near Oxford, Philip Mimekan held a single hide of the king in chief by a forest serjeanty; it was called the Deerhide (le Der- hyde) ; so far as appears his only tenants were eleven cottagers ; but he had his franchises ' to wit, view of frankpledge of his tenants, chief pledges, ale tasters, amends of the assize of bread and beer, amends of blood-shed and of hue and cry for trespasses committed upon the said hide I' To the size of the manor we can set neither an inferior nor Size of the a superior limit. Occasionally diminutive words are coined to ™^"'"'- indicate manors which are of less than the normal size; thus Domesday Book tells us how the Bishop had a maneriolum in Lincoln with one carucate of land and sake and soke and toll and team*; and the Hundred Rolls tell us of a manerettum in Devonshire". In Domesday Book the word manerium seems often to imply but an exceedingly small quantity of land, as 1 E. H. ii. 491. ^ B. H. ii. 875. ' E. H. ii. 711. * D. B. i. 336. = B. H. i. 66. 592 Jurisdiction and Communal Affairs, [bk. ii. when we are told that a single hide was held by five thegns for five manors^. In the thirteenth century we shall hardly find the word given to such little estates. On the other hand the very largest manors which then meet us have all the appearance of being very old. Four cases may be mentioned. The ancient demesne manor of Bensington in Oxfordshire has according to the jurors been vast; Henley-on-Thames, Nettlebed, Wyfold, Hunter- combe, Warborough, Shillingford, Holcombe and Orowmarsh have been its hamlets and four hundreds and a half have been appurtenant to it". In Domesday Book Bensington pays the king the large sum of £80 and 100 shillings 'and the soke of four and a half hundreds pertains to this manorl' In Suffolk lies the huge royal 'manor' of Lothingland, containing the towns of Gorleston and Lowestoft, which lie some nine miles apart*; this represents a great estate held by Earl Gurth in the time of the Confessor^ In Lincolnshire the king's manor of Castor includes many adjacent villages or parts of them"; this was a great estate of Earl Morcar with 240 sokemen, 24 villani, 28 bordarii'. The manor of Taunton Dean covered numerous villages ; in the Conqueror's day it brought the bishop of Winchester £154 a year^ it has become the classical example of manors abnormally large. Admini- ^® "^^7 probably insist that the unity of the manor implies strative g, certain unity in its administration. A lord may have many manors lying side by side and yet they are separate manors, because he treats them as separate. If however we find this unity merely in the existence of a single court, then the manorial theory of private jurisdiction will be idle, for it will come to this, that the right to a court depends on the existence of a manor, while we can only define a manor by saying that it is a complex of rights over lands and tenants which includes the right to hold a court. But to find in all cases any other unity than this will be difficult. No doubt the manor generally had one set of common fields to itself, one set and no more; but exceptions to both parts of this rule must have been common. Each of the vast maneria of Domesday Book can- not have had just one set of fields and no more, and some 1 D. B. i. m b. 2 E. H. ii. 751. s D. B. i. 154. * E. H. ii. 160-9. » D. B. u. 283. « E. H. i. 265. 7 D. B. i. 338 b. s d_ g. i. 87 b. CH. III. § 6. J The Manor. 593 of these vast maneria still existed in the thirteenth century. On the other hand, when in Cambridgeshire we find several distinct manors in almost every vill and then look at maps made before the inclosure of the common fields, we shall learn to doubt whether in this part of England the lands of the manor could, even normally, be brought within a ring fence; they seem to have lain intermixed in the common fields with the lands of the other manors of the same vill. If then we put the court out of sight, we seem brought almost to this, that the delimitation of one manor from other manors of the same lord is a matter of convenience, a ' matter of account ' ; one manor may become two, two may become one, as the lord chooses to have his accounts kept, his rents collected, his produce garnered in this way or in that. At least with the consent of his freehold tenants, a lord may ' attorn' a piece of land to this manor or that, decide that the tenants shall pay their rents at this house or at that, while as to his villeins, their consent need not be asked '- On the whole therefore we come to the conclusion that in Summary, the thirteenth century the word 'manor,' like the 'estate' of our own day, was a vague, though common and useful word. Applied to a given instance it might be definite enough; no one would doubt that certain acres belonged to the manor of Dale, just as now-a-days it may be notorious throughout the countryside that certain acres are part of the Dale estate ; but to have inquired what it was that gave the manor of Dale its unity, what made it one manor not two manors (to be called perhaps Upper Dale and Lower Dale), what were the charac- teristics a loss of which would have been fatal to its existence as a single manor, would have been to ask questions no clear answer to which could have been had, because they would seldom have been useful questions. They could only arise in a practical form on the comparatively rare occasions when there was a dispute as to how much land had passed by some feofiftnent or lease and on such occasions they could easily be settled by reference to general repute : — the jurors would say that the plot in question had always, or had never, been accounted part of the manor. In other words, we are inclined to think that the mere fact that a certain tract of land or a certain complex of rights was a manerium had no immediate 1 See Note Book, pi. 695. P. M. 38 594 Jurisdiction and Communal Affairs, [bk. ii. legal consequences. In particular it seems to us that the men of the time would generally have argued from the court to the manor, rather than from the manor to the court, would have said 'A single court is held for it, therefore it is a manor/ rather than ' It is a manor and therefore it has a court.' § 7. The Manor and The Township. Coincid- In a famous passage Ordericus Vitalis asserts the identity manor*and °^ *^^ manerium and the villa : — the Bishop of Ooutances held ''™- by the Conqueror s gift two hundred and eighty ' villas qnas a manendo manerios vulgo vocamus^.' An assumption to the same effect seems to be made by the writ which ordered the Domesday Inquest; the priest, the reeve and six villani of every villa are to swear, in the first place how th« mansio is called, who held it under the Confessor, who holds it now, how many ploughs there are in demesne, how many the men have — and so forth. It is assumed that England is, and has been held in villae, that each villa has its mansio. The answering verdicts do not altogether bear out this assumption. The local names which are used (when they are not names of counties or hundreds) seem to be with few, if any, exceptions the names of places which were accounted villae; they are names of villages and generally there is no difficulty about finding them as names of villages, and in the south of England as names of parishes also, upon the modern map. Now very commonly it is true that a single lord holds the whole place which bears one of these names. The formula used is 'A (name of a tenant in chief) tenet X (place name)' and we do not find that any person, other than A and tenants of his, holds anything in X. But this rule is subject to so many exceptions that in some parts of the country it ceases to be the rule. Such is the case in the neighbourhood of Cambridge. For example there are five tenancies in chief in Trumpington and six in Granchester ; no one therefore could call himself the lord of Trumpington or of Granchester, save the king, and he only in the sense in which he was lord of every vill in England. Hereafter we will attempt to examine more closely the state of 1 Ord. Vital, ii. 223. CH. III. § 7. J The Manor and The Township. 595 things disclosed by Domesday Book and to say what little can be said of its perplexing use of the term manerium. In later documents we find the same assumption which in French we might express thus ' NuUe ville sans seigneur.' In the Leges Henrici' the priest, reeve and four of the best men of the vill may appear as representatives of the lord. Of what lord? The lord of the vill. The Saladin tithe of 1188 is to be assessed in each parish in the presence of the serjeant and clerk of the baron. Of what baron ? The lord of the parish. For the assessment of the tax of 1198 the presence is required of the lord of each vill or the bailiff of the vilP. Even the statute book of the fourteenth century seems sometimes to assume that every vill will have its lord^. All this is significant for it seems to testify to a common CoincM- . . ence belief that each villa is held by one lord, that normally vill and assumed manor are but two names for one thing ; the villa of public ^ """"^ • law is the manerium of property law. In favour of the assumption that this is the common and typical case we may add that it is the simple and explicable case. When vill and manor coincide then we see an organization which will enable the township to discharge its public duties. It now has a court, in which a reeve may be appointed, a constable appointed, in which all questions relating to the apportionment of public duties can be decided. We can further see how in this case the township can have common rights, the right for example to turn out beasts on a common pasture ; the soil of that pasture belongs to the lord of the vill and regulations con- cerning its use can be made in his court. All will go smoothly for the 'communitas' or 'communa' of the township has a governing body, a representative assembly which meets perio- dically. Very frequently indeed this case is put before us in the rolls of manorial courts : — the body of persons who attend the court represent the township, are the township, and so we read how the villata gives evidence, gives judgments, makes presentments, makes by-laws^. The lord's court in such a case 1 Leg. Hen. Prim. o. 7 § 7. 2 See the documents of 1188 and 1198 in Stubbs, Select Charters. ' Stat. 28 Edw. III. c. 11 : ' et enquestes soient auxint prises en viUes .... par celui qe est sovereign de la ville.' Compare Stat. 23 Edw. III. (of Labourers) c. 4 : ' et si domini viUarum vel maneriorum.' < Bodleian, Suffolk Court EoUs No. 3 :— ' Villata dioit quod P. S. et E. C. fodierunt communam de H et quia consuetude villae non est talis, 38—2 596 Jurisdiction and Communal Affairs, [bk. ii. was not merely the court of a manor, it was the court of a vill, of a township ; in English spfeech it may often have been called the town-moot or township-moot^. This coin- Such was the simple, and we have seen some reason for cidence not . ^ always Calling it the typical, case. But m many parts of the country it can not have been the commonest case. In the thirteenth century the terms ' manor' and ' vill' were certainly not equivalent. The legal principles which shape the manor are not those which shape the vill. For a moment we may even be tempted to say that the vill is a unit of public, the manor a unit of private law ; the one a unit for police purposes and fiscal purposes, the other a mere complex of proprietary rights and of the mutual obligations which bind lord to tenants and tenants to lord. And there is some truth in this idea. To all appearance the boundaries of the vills are matters of public law, not to be disturbed by conveyance or contract. New townships can not be created or old townships abolished by the lord of the soil, for in so doing he would disarrange the fiscal, administrative, justiciary scheme of the hundred, the county, the kingdom and might aggravate the burdens incumbent on his neighbours ^ The power of making new vills without licence from above must cease as the centralization of govern- ment and justice becomes more perfect, probably had ceased before the end of the twelfth century. But the next century was near its end before landowners had lost the power of creating new manors. The process of subinfeudation went on rapidly ; it was governed merely by rules of private law ; it created new manors. Partition among coheiresses was another source of new manors; even in later centuries when legal doctrines had collected round the word 'manor,' when the general theory was that a manor must have existed from before the beginning of legal memory, it was still admitted that a partition among co-parceners might make two manors out of eonsideratum est quod P. et E. distringantur.' Duchy of Lancaster Court EoUb, Bundle 62, No. 750: — ' Consideratum est per totam villatam.' Select Pleas in Manorial Courts, i. 11 : ' ViUata praesentat.' ' As a matter of fact the title of the court on its roll will seldom use any of these terms. The court is simply the court of Mickleton or of Littleton. ' Bracton, f. 211, speaks of the formation of new viUs. Seemingly if in the vill oi A & new group of houses is formed, this may come to be known as the vill of B; but these houses will be also in the vill ol A. In pleading one may describe them indifferently as in A or in h. CH. III. § 7.J The Manor and The Township. 597 one'. But serviceable though this general idea may be, this contrast between the units of public and the units of private law, we can not press it home. At least according to our modern ideas, a court is an institute of public not of private law ; but it is rather the manor than the township that has a court; the township as such has none. Still, bhough it may be impossible for us to explain the distinction by any general terms of modern jurisprudence, the distinction existed^. Bracton expressly tells us that a manor may contain several Non- vills'. The bishop of Durham seems to have held sixty-seven viUs. vills distributed into ten manors, so that on an average each manor contained more than six vills^ Such cases, common in the north, we may at the moment pass by as raising no great difficulty ; the lord may keep but one court for several vills, still there is a court which can act as a governing body for every vill. Far more perplexing is the case in which there was no court with authority over the whole vill. Yet such a case was common. If we may trust our county histories there are often, at least in the south of England, two, three or four manors in the same vill. When we have made large deductions for mistakes engendered by the vanity of- modern landowners who have liked the sound of the word ' manor,' the case remains a common one, and at least in Cambridgeshire the indisputable testimony of the Hundred Bolls shows that it was common in the reign of Edward I., while Domesday Book shows that it had been common ever since the Conquest. When there are several manors in a vill the names that they bear are often not true local names but family names, the names of the ' Sir Moyle Finch's Case, 6 Co. Eep. 64. No doubt the Statute Quia Emptores had the effect of preventing the creation (otherwise than by ' act of law ') of new manors. But in laying down the rule that even the king could not create a new manor lawyers, being in this case unable to rely on the statute, invented the wholesome, if unhiatorioal, principle that a manor can only come to perfection by continuance of time. 2 The difEerentiation of the two terms is marked by a case in Y. B. Edw. II. f. 65. Counsel remarks that in ancient times a man might levy a fine of a vill. This remark, which is true (for see e.g. Fines, ed. Hunter i. 259), seems to imply that a vill was no longer regarded aa a subject for conveyance. In the case before the court Henry Percy pleaded that the Abp of Canterbury held of him four vills. This was rejected, and he tried to amend his plea by substituting for the four vills a manor to which three vills are appurtenant. 3 Bracton, f. 434. ■" Durham Hahnote Rolls, Introd. p. viii. 598 Jurisdiction and Communal Affairs, [bk. ii. persons who held them in the thirteenth or even in some later century. Manor and There is however a certain difficulty before us when we 'attempt to define the cases that are under discussion. We must in the first place mark off the instances in which there is a chief manor with several sub-manors, for in these instances the whole vill may be subject mediately or immediately to one and the same court, the court of the chief manor. That court will be attended by the lords of the sub-manors or their representatives and may be able to act as a ^verning assembly for a whole vill or for a group of vills' But, though it is very hard to fix precisely the limit, we come upon cases which we can no longer describe as presenting the phenomenon of manor and sub-manor. The difficulty is occasioned by the vagueness of the term ' manor' and the fact that in a certain sense every vill in England must have a lord who is lord of the whole vill ; at all events the king will be lord of the vill ; all the titles of all the landholders may meet at some point short of the king, the whole vill may belong to the honour of Gloucester, but at any rate they will meet in the king. Now when in a single vill we find three or four lords each with land in demesne, freehold tenants and villeins, and each lord holds immediately of the king, or traces his title from the king through a different series of mesne lords, and when we find that the king himself has no demesne land and no villein tenants in or near the vill, we feel that any talk of chief manor and sub-manors will be out of place : — the king has no manor there and no one has a manor which contains the whole vill. The case is much the same if the titles of the various lords meet in the Earl of Gloucester ; the whole vill forms part of the honour of Gloucester ; the lords may be bound to attend the court, or one of the courts of that honour; but if the Earl has no demesne land and no villein tenants in the neighbourhood, we shall not say that any of the Earl's manors comprises this vill. But we have to use vague phrases such as 'in the neighbourhood.' In Oxfordshire Robert Danvers has a considerable holding at Tetsworth, John Clifford at Milton, Henry de Bruyli at Waterstoke, Jordan Forester at Ascot, the abbot of Thame at Affington, Nicholas Segrave at ' Thus the tenants of the manor of Bampton Fogeys which is held by Bobert Fogeys must onoe a year appear in the court of Eobert's lord WiUiam of Valence ; E. H. ii. 689. CH. III. § 7.] The Manor and The Township. 599 Moreton, William Quatermains at Weston; each of them has many tenants ; most of them have what according to any definition must be mUnors ; their holdings lie in various vills, some lying more than five miles from Thame ; yet each of them holds ' of the manor of Thame,' which belongs to the Bishop of Lincoln'. However we have already said our say about the verbal question ; the point now of importance is that to all appearance there were many cases in which there was no feudal court that could in any sense claim authority over the whole vill and many other cases in which the only feudal unity of the whole vill was due to the, for our present purpose unimportant, fact that every part of it was remotely held of some very great lord and was, or might be, represented in the court of some wide-spread honour. This fact we call unimportant, for we can not suppose that the court of the honour, if such there were, meddled with the internal government of the vills. England was not composed of manors. In many a vill we may find a few tenements which in the feudal or tenurial system stand far apart from the tenements with which they are intermixed. Their holders are small freeholders who have no lord but the king or some magnate who has no other land in that vill or in its neighbourhood. How then were the internal affairs of the vill regulated ? The afEairs It may seem to us that here we ought to be able to detect manorial some organization of the vill that is not manorial, not feudal, some ' townshipmoot,' or some intermanorial organization. The township must have a reeve, the township must send four good men to court, the township must capture felons and keep them in custody, the township must make all manner of payments, periodic and occasional. How can these duties be apportioned if there be no court, assembly, governing body of the vill ? We have looked for such organization in our documents Permanent without finding it. To say that it must have existed, to catch mrart of"" at a few rare phenomena which appear at a later time and call ghip*s™'' them ' survivals,' to urge that there must have been parish duties, vestries governing the affairs of the township though we read no word about them — these are heroic expedients from which at present we shrink". Such evidence as we have points, not ' E. H. ii. 821. 2 As to townshipmoot and vestry, see Maitland, Survival of Archaic Communities, Law Quart. Bev. ix. 226. 600 Jurisdiction and Communal Affairs, [bk. ii. to any standing village assembly, but to permanent arrange- ments made once for all, arrangements under which, at least as between the various manors, lords of manors and extra- manorial freeholders, the communal burdens of the township have become 'real' burdens. Once more we come upon the ' realism ' of the time ; one manor owes an aliquot share of all imposts exacted from the vill, another manor another share. The duty of sending representatives to the courts has been thus permanently apportioned. To represent Dodford in Buckinghamshire one lord supplies three men, another the fourth man and the reeved The vill of Thurlby and Morton used to appear before the justices as an entire vill; but now the Templars ' subtract ' one man whereby the king's business is impeded''. The fourth part of the vill of Willingham, namely the fee of Oantilupe does not make its accustomed suit, to the king's damage of 2d. per annum ^. The township of Abingdon Parva used to come to the eyi'e and the sheriff's turn by four men and the reeve, but now John of Girund withdraws one man and the Prioress of St Rhadegund another, so that but three come*- The township of Great Shelford and John de Burgh's part of Harston did not come to the inquest, therefore they are in mercy°. Such entries as these seem to show that the burden of providing the five representatives, like every other similar burden, tended to become a permanent charge on certain particular acres of land. Allotment And SO with the duty of contributing to fines and amerce- bnrdeM?' ments. The aliquot share that each hundred must contribute towards a fine imposed on the county is known, and the aliquot share that each vill must pay to a fine imposed on the hundred is known. Thus it is known that if a fine be imposed on the hundred of Hoo in Kent, the abbot of Reading ought to pay one third of it ' for he stands for a third in the said hundred as the third lord of the said hundred'.' What is to happen if he procures a charter exempting his lands from these fines is not very clear; the men of the hundred hold one opinion, the officers of the Exchequer another. So again it is not certain how far these apportionments are unalterable : — the men of 1 E. H. i. 33. 2 E. H. i. 286. » E. H. i. 364. * E. H. i. 52. 5 Assize EoU, Cambridgeshire, 45 Hen. III. 8 E. H. i. 220. CH. III. § 7. J The Manor and The Township. 601 Marshland declare that they ought to hear hut one third of the charges cast upon the hundred of Freebridge, while the other men of Freebridge assert that new assessments should be made from time to time\ And so it is within the vill. In an ancient survey of the lands of St Edmund we read that the vill of Risby is divided into four parts; the hall of the convent with its men is one fourth, the land of Ralph Breton another, the land of Norman another, the land of William and of the sokemen another^. Thus when we are told that a township contributes this or that amount to some ancient impost, towards the danegeld, the sheriff's aid, the hundred-scot or the like, we must not at once assume that any organization of the township was requisite for the assessment of this due. These taxes seem to be radicated in the soil. In the Lincolnshire Hundred Rolls we often read how ' A. B. has subtracted service due to the king, to wit, the sheriff's aid from one carucate, or from six bovates, or from a half-bo vate of land, to the king's damage 20d, or to the king's damage \\dy In the case of some of these dues the men of the township may perhaps have been jointly and severally liable for the whole amount which is said to be paid by or due from it ; still as between the various parts of the vill there was a permanent apportionment. We often hear complaints that the financial affairs of the township have been disordered by claims of immunity from taxation, and they show that if one lord shufHes ofif his burden he increases, at least for a time, the burden of his neighbours. Hugh de Gornay gave one carucate out of his manor of Houghton to the prior of Dunstable ; the tenants of this carucate used to contribute to the amercements of the township of Houghton ; but now they claim franchise under the king's charter; the township has been amerced for an escape to the amount of 100s. ; the sum was to be collected rateably according to the extents of lands {per porciones et eidentas terrarum) ; the prior's share was 20s. ; he wUl not pay; but the vill has to pay instead ^ But though a gross sum is charged on the vill and tlie men of the vill may 1 Eot. Pari. i. 428. ^ Gage, History of Suffolk, p. xii. ft. 3 B. H. i. 255-6. * E. H. i. 8. Entries which seem to imply that if a lord withdraws his land or his men from the soot and lot of the vUl, the rest of the vUl suffers, are common enough; thus e.g. R. H. i. 18, the whole of Eton from Baldwin's bridge to Windsor bridge used to be at soot and lot with Windsor, but now it is ' subtracted ' by the King of Almain. 602 Jurisdiction and Communal Affairs, [bk. it. be jointly and severally liable for the whole sum, still within the vill the shares of the several tenements have been fixed once and for all. The church Such was, WO suspect, or in the past had been, the case with the church-rate or its precursor. We here tread on ground every inch of which has been undermined by bitter controversy; we will traverse it rapidly*. Whether or no the church-rate has a remote origin, whether it is connected with ancient church-scots and light-scots, whether, on the other hand, the clergy have shufHed off a burden which once fell on them, we do not inquire. We think it however quite plain that in the thirteenth century the general custom of the church of England, swerving in this from the ius commune of the catholic church, cast the burden of repairing the nave of the parish church and providing the main part of the ecclesias- tical apparatus, not upon the parson but upon the parishioners, and that the lay power left the spiritual tribunals free to enforce this custom by spiritual censures. But we are by no means satisfied that this custom demanded any permanent organization of the parishioners, any 'vestry' that would meet and grant a rate. So far as we can see the burden is a ' real burden,' incumbent on land. The ecclesiastical power can, we take it, deal directly with each individual landowner, can excommunicate him and procure his imprisonment if he will not contribute his proper share to whatever expenditure has become necessary for the due repair of the fabric, and the question of necessity is decided by the ecclesiastical court. The duty of repairing the parish church is analogous to the duty of repairing the county bridges ; it is planted in the soil and to the soil it has ceded ; it is apportioned according to hidage or acreage^. No doubt the occasional nature of the charge almost compels the rector or the archdeacon to deal with the parishioners as a body, to call them together and endeavour to persuade them that a wall is crumbling or that a 1 Among the beat of the many pamphlets on this subject are, W. H. Hale, The Antiquity of the Church Rate System (1837) ; W. Goode, A Brief History of Church Bates (1838) ; Robert Swan, The Principle of Church Bates (1837). ^ In Cambridgeshire the pontage was certainly taken as a tax on land. B. H. i. 50 ; the sheriff has taken from every hide in the county two shillings for pontage, whereas he used to take but six pence. We see here no vote of the tax. OH. III. § 7.] The Manor and The Township. 603 new missal is wanted. The parishioners will make terms with him ; they may vote him a rate to be assessed in this way or in that ; and very likely, as they will have to pay, they will hire the workmen and buy the materials. The splendour and costliness of the churches and their furniture increase very rapidly ; the parson's demands grow heavier and more frequent. What goes on in the kingdom at large is going on in each parish. Money-voting vestries became as indispensable to the rector as money-voting parliaments are to the king. Movable wealth must be brought within the sphere of taxation. To our minds it would be as rash to argue from the ' vestries ' or parishioners' meetings of the fourteenth and fifteenth centuries to similar assemblies of an earlier time, as it would be to argue that the commons of the realm were represented in the councils of Henry II. because they were represented in the parliaments of Edward I. And so with the church-wardens. We are not persuaded that as a general rule there were church-wardens in the thirteenth century. They and their legal powers are, to our thinking, the outcome of two movements, one in the world of fact, the other in the world of legal thought. If the parishioners are compelled to provide precious books, robes, vessels, they will naturally desire to have their say about the custody of tbese articles ; parsons have been known to sell the church plate. Secondly, as we have seen, in the later middle ages a dead saint or a personified ecclesia would no longer serve as a persona capable of proprietary and possessory rights. The lawyers are beginning to hold that the parson is in some sort the owner or tenant of the church-yard and the glebe; they have to find an owner, at all events a possessor, for what in the past had been the chattels owned and possessed by a saint or a personified ecclesia; the church- wardens present themselves as claimants for property and possession ^ 1 The first clear tidings that we get as to the incidence of the duty that is cast upon the parishioners tell us that they contribute ' secundum portionem terrae quam possident in eadem parochia' ; Synod of Exeter (1287), Wilkins, Concilia, ii. 138. John de Athona, Const. Othoboni, can. improbam, gloss, ad v. peragendam, doubts whether the burden be 'real' or 'personal,' decides in fcivour of reality, but on either side alleges nothing beyond ineptitudes out of Code and Digest. In 1275 the township of Graveley contracts with a mason for the repair of a wall of the church ; he is to have 3s. 2d. for the work and a garb of wheat from every house ; ' the attorney of the township ' sued him in the fair of St Ives ; Select Pleas in Manorial Courts, p. 150. In 1370 we see 604 Jurisdiction and Communal Affairs, [bk. ii. Apportion- A. curious glimpse into medieval habits and thoughts is taxes on given US by the history of those royal taxes upon movable goods movables, ^j^-^j^ ^^^ becoming common at the end of our period. Upon the face of the documents which prescribe how the tax is to be levied, we see little enough of communalism and little enough of ' realism.' Every man in England is to pay a fifteenth of his movables and therefore every man of Littleton must do so. In order to reveal the amount of his wealth, some of his neighbours must be examined, and for the purpose of the requisite assess- ment the vill will be taken as its unit. Four or six men must come from each vill to meet the chief taxers whom the king has appointed. It is possible that in some of the early instances these representatives were chosen by their fellow villagers — even this would not entitle us to imagine any standing assembly of the township — but so soon as the procedure becomes perfectly clear, the villar representatives are not elected by their neigh- bours^ The king appoints ' chief taxers ' for the county ; they parishioners assembled, making a regular rate and distraining for it ; but it seems exceedingly doubtful -whether their resolution binds one who has not assented to it ; Y. B. 44 Edw. III. f. 18 (Trin. pi. 13). This case does not look as if a ' vestry ' had an old and well established power of granting, assessing and enforcing a rate. As to the church-wardens, they become prominent enough in the Year Books of the fifteenth century; but even then some elementary principles seem to be in dispute; see e.g. Y. B. 11 Hen. IV. f. 12 (Mich. pi. 23) ; 8 Hen. V. f. 4 (Hil. pi. 15); 37 Hen. VI. f. 30 (Trin. pi. 11). The Synod of Exeter in 1287 (see above) had said, ' Ornamenta ecclesiae securae custodiae committantur, non tanien sub custodia laicorum, nisi id necessitas maior expostulaverit.' The Church-wardens' Accounts edited by Bishop Hobhouse in 1890 for the Somerset Becord Society point to the conclusion that in the fourteenth and fifteenth centuries the making and enforcement of a compulsory church rate was a rare event ; indeed the learned editor (p. 231) says that he knows of but one case before the reign of Elizabeth. The church-wardens seem to have got the money that they needed by means of voluntary gifts and legacies and of ' ohuroh-ales ' which opened the purses of the parishioners. ^ The very fact that the mode of assessment was constantly changed points to the conclusion that there was no permanent organization apt for the purpose. In 1188 the individual taxpayer assesses himself but is liable to be checked by the lord's steward and the parish priest ; if they dispute the correctness of his estimate, four or six of his feUow parishioners are sworn to assess him. In 1198 the vill is represented by the lord of the vill or his bailifi, the reeve and four men. In 1207 the taxpayers declare their own liability. So in 1225 the tax- payer swears as to his own goods and those of two of his next neighbours, differences being referred to a jury of twelve. In 1232 four men are to be chosen {eligantur) in each vill and they with the reeve are to make the assessment. In 1237 four men are to be chosen (eligi) in each vill to make the assessment. See the writs in Stubbs, Select Charters. CH. III. § 7.] The Manor and The Township. 605 are to cause to come before them so many men from each vill that they, the chief taxers, may be able to choose out four or six, who are thereupon to appraise the goods of every man of their vill\ Of any sum of money cast upon the vill as a whole we read no word ; each individual man of the kingdom is to pay a fifteenth of his movables. However in Edward III.'s reign the effect of repeated taxations is that certain quotas have already struck root in the soil of the vills. Frequently a township com- plains that it is assessed too highly, for it is not so rich as once it was. Arundel has suffered by fire, Frismark by water ; in Bradway there used to live a rich man who paid two thirds of the taxes that fell on the vill, but now he is dead ; men are leaving Derby to live at Nottingham because the burden of tenths and fifteenths lies heavy on the former town ; the men of Newport complain that the pressure of the fifteenth upon them is increased because the Prior of Newport has acquired lands in their vill and is free from taxation^. Now all this means that a given vill is rated at a certain sum, and that, whenever a fifteenth or a tenth of movables is payable, the chief taxers insist that a fifteenth or a tenth of that sum must come from that vill. There is in this case nothing that we can with accuracy call communal or common liability. The sub-taxers have to apportion this fixed sum among the men of their vill and the individual man will to all seeming be liable only for the amount which they cast upon him. Still there is a localized allotment of the tax among the vills. The case is the more instructive because the growth of this system seems but half recognized by the state. If a township is impoverished by flood or fire or the death of a wealthy member it demands a new taxation and seems to regard this as matter of right. This is a remarkable example of the ' realism ' of medieval law. Even a tax on movables can not live without roots; it must attach itself to the land. We see this happening in the full light of the fourteenth century to the detriment of the royal exchequer which is forced to regard the wealth of England as a fixed quantity. We may be fairly sure that in earlier days this realism was yet stronger, and where it prevailed no permanent communal machinery was required for the apportionment of public burdens. 1 Eot. Pari. i. 239, 240, 269, 442, 445, 450, 457 ; ii. 447. 2 Eot. Pari. ii. 184-9, pl3. 606 Jurisdiction and Communal Affairs, [bk. ii. Actions The student of the middle aefes will at first sight see against the ° ,. . hundred, communalism everywhere. It seems to be an all pervadmg prm- ciple. Communities rather than individual men appear as the chief units in the governmental system. A little experience will make him distrust this communalism ; he will begin to regard it as the thin cloak of a rough and rude individualism. He reads of an action for damages given against a hundred which has neglected its police duties'. At first he may think that the hundred as a universitas has property out of which the damages can be paid. He will soon be persuaded that this is not so. He next imagines the hundred-moot levying a rate for the payment of a sum that has been adjudged to be due from the hundred. But turning to his books he finds that there is nothing in the case that ought to be called communal liability ; there is merely a joint and several liability. The person who has been injured picks out two or three wealthy inhabitants of the district, sues them for the whole sum and recovers it from them. But at all events (so he may think) these men will be able to claim a contribution from their fellow inhabitants. No, the burden lies where it originally falls. This is so until Elizabeth's day when for the first time a more equitable and a more communal principle is introduced, and all the inhabitants are rated for the relief of those who have suffered for the sins of the hundred^. What we begin by calling the permanent charges on the community turn out to be 'real' burdens apportioned for good and all upon manors and virgates and acres of land, while, at least in some cases, as we have just seen, the occasional charges are distributed by chance. But (to return to the township) the unity which public law demands from it is not the only unity that it displays. Having read, for example, in the Hundred Rolls, how in Cambridgeshire the vill quite commonly contained two, three, four manors, having verified this in Domesday Book, having seen for instance how ever since the Conquest there have' been five tenancies in chief in Trumpington, six in Granchester, we turn to maps 1 Statute of Winchester, 13 Edw. I. 2 Stat. 27 Eliz. c. 13. sec. 4: 'And although the whole hundred where such robberies and felonies are committed ... are by the said statutes . . . charged with the answering to the party robbed his damages ; yet nevertheless the recovery and execution ... is had against one or a very few persons of the said inhabitants, and he and they . . . have not heretofore by law had any mean or way to have any contribution of or from the residue of the said hundred. ' Economic affairs of the non- manorial vill. CH. III. § 7.] The Manor and The Township. 607 which seem to show that very often these manors were not continuous tracts of land. Each village has its great open fields; the fields take their names from the villages not from the manors; the lands of the various manors, we can hardly doubt it, lie intermixed in the fields. Now this we can not treat as a mere geographical fact. Cultivation of the common fields implies a system of agriculture which must in some degree be communal. To this we must add that in the thirteenth century rights of pasture are far more commonly attributed to the men or the community of a vill than to the tenants of a manor. In some cases it must have been difficult enough to say to whom belonged the soil of the waste land over which these rights were exercised. Of course if a manor coincides with the vill, there is no difficulty; the lord of the manor owns the waste land; and again if there be a chief manor coincident with the vill, then the lord of the chief manor owns the waste, or such parts of it as have not been allotted in severalty to the various sub-manors. But, as we have seen, these cases do not exhaust all possibilities or all realities. There might be four or five manors in the vill between which there was no subordination : each lord might trace his title up to the king along a different feudal thread. We may take as an instance the vill of Gamlingay in Cambridgeshire, not because it is an abnormally elaborate one but because it attracted Nasse's attention ^ ' The whole township (villata not villa) of Gamlingay has twelve score acres of common pasture and heath.' According to the jurors the whole township came to King Stephen by way of escheat and out of it he enfeoffed three men namely the predecessor of John Avenel, the predecessor of "William of Leicester and the predecessor of Hugh of Babington, besides which he gave a certain tenement to his steward Walkelin which has now come to the abbot of Sawtrey. John Avenel has a well marked manor with demesne, customary tenants and many freeholders who have other freeholders under them. The same is true of Hugh of Babington. William of Leicester sold his part to Walter of Merton and it has gone to endow his house of scholars at Oxford ; they have demesne land and many freehold tenants. All these tenements are accounted to belong to the honour of Boulogne; but there is yet another tenement with a hide of land which Richard of 1 Agricultural Community (transl. Ouvry), p. 60. 608 Jwisdiction and Communal Affairs, [bk. ii. Edensore holds of the honour Gloucester'- Who then owned those twelve score acres of pasture and heath over which ' the whole township of Gamlingay' had rights of common ? Perhaps this question has never yet been considered by the lords or tenants of Gamlingay. So long as certain land is regarded as doomed for ever to be pasture land and so long as every one knows how many beasts he may turn out on it, the question as to the ownership of the soil does not arise and is not answered. We must not be quick to say that in the past the township of Gamlingay has owned this soil, far truer may it be to say that in the past this soil was owned by no one, that the idea of ownership had never been applied to it. But we are now dealing with the thirteenth century and our present point must be that in Gamlingay we see no court, no assembly, capable of dealing with this waste. We do not see it in our documents. Shall we say that none the less it must be there ? Intercom- Before we give an affirmative answer we ought to observe monmg ° .... viils. that there were many cases m which two, three, or more vills intereommoned. Of such cases we read much in the thirteenth century, but they seem to grow ever rarer as time goes on^ Sometimes the boundaries of vills were very uncertain; between them lay a waste over which the cattle roamed indiscriminately and no one could fix the spot where the territory of one vill left oif and that of another began". Now when we see this we do not feel compelled to suppose that there was some permanent ' intervillar ' organization, some assembly in which the several townships met each other to discuss and regulate the affairs of the common. So when there are several manors in one vill; the rights of the various lords in * the common of the vill ' seem regarded as having been determined once for all by the terms of their feoffments and, if there is to be any new regulation of them, this is accomplished, not by the action of any court or ' B. H. ii. 529-534. 3 Note Book, pi. 174, 330, 628, 839, 971, 1721 ; Year Book, Edw. II. f. 170, 183, 314, 327, 330. In Somersham the Bp of Ely had a great wood of 300 acres in which the men of the townships of Warboys, Woodhurst, "Waldhurst, St Ives, Neediugworth and Holywell, all of which belonged to the abbot of Eamsey, had common together with the men of the bishop's large soke of Somersham; E. H. ii. 605 ; Cart. Earns, i. 283. " Note Book, pi. 174. The jurors can not tell the limits of Billiughay and North Kyme in Lincolnshire, for there are marshes in which the men of these two vills intercommon, CH. in. § 7.J The Manor and The Township. 609 assembly, but by a treaty. Each lord can represent himself and his villeins; his freeholders give their consent. Such treaties were not uncommon. The Abbot of Malmesbury wished to enclose part of a great moor called Corsgrave. Twelve deeds were necessary for this purpose. By one the lord of Foxley 'on behalf of himself and all his men of servile condition ' released his right of common ; by the others various freehold tenants of Foxley released their rights'. As to the customary course of agriculture, that needs no regulation ; it maiatains itself, as it will maintain itself in the eighteenth century when the manorial courts are perishing. As yet men do not wish to break through it. What could one do with one's scattered strips of land if one set the custom at naught ? They must lie profitless ^ But that the township as such had and needed but little Eetum permanent organization we shall better understand if we return manorial to the common case in which a township and a manor are ^™" coincident. Here at first sight we may seem to see a very effective organization; the vill is no mere administrative district ; the township is a ' village community.' Certainly this is so ; the township is a commwia, a communitas, and this village community has a moot, a court and assembly of its own ; the communitas villae is the communitas halimoti. Still under the influence of modern theories about ' archaic' facts we might easily exaggerate the amount of communalism or even of self- government which exists in the township. This will become EigMs of apparent if we examine the rights that are known as rights of common. Here if anywhere we ought to see the commu- nalism of the township at its best and strongest. The house in the village, the arable acres in the fields, it may be said, are by this time owned in severalty, though a man's ownership of his arable is still subject to the rights of the township which are expressed in the programme of agriculture, the two-course system, or the three-course system ; but the waste land with its pastures and woods and waters belongs to the township as a whole. True, it may be added, a lord has now assumed to himself the rights or many of the rights of the village corpora- tion ; legal theory supposes that the waste belongs to him ; but then the members of the township^ free and unfree, still ' Beg. Malmesb. ii. 153-165. For another instance see Ibid. ii. 185. " Maitland, Survival of Archaic Communities, Law Quarterly Eev. ix. 224. P. M. 39 common. 610 Jurisdiction and Communal Affairs, [bk. ii. enjoy this waste in common and regulate its enjoyment in their moot. Remove the lord, who is an aftergrowth, the township appears as a landowning community. Bights of But does our evidence really point this way ? Let us take common /•i/.iii i-iitii -i and the case of the freeholders which should be comparatively ri^te"° undisturbed by the effects of seignorial dominion. Are their rights ' of common' in any sense communal rights ? Of course there is just this element of community about them : — they are rights to be enjoyed in common. A right of common is a right to enjoy something along with someone else, to turn out one's beasts on a pasture where the beasts of the lord and of one's fellow-tenants feed, to take sticks from a wood, turf from a moor, fish from a pond in which others are entitled to do similar acts. But for all this the right may be an individual's several right, a right that he has acquired by a several title, a right that he can enforce against his fellow-commoners, a right that he without aid from his fellow-commoners can enforce against strangers, a right over which his fellow-commoners have little or no control. The free- Such really are the freeholder's rights. At a later time our rights. law definitely laid down the rule that the freehold tenant of a manor is entitled to ' common appendant,' which is defined as 'the right which every freehold tenant of a manor possesses, to depasture his commonable cattle, levant and couchant on his freehold tenement anciently arable, in the wastes of the manors To entitle himself to this right a man merely has to show that he is a freehold tenant of the manor ; he has not to show that this right has been granted by the lord to him or to his predecessors, nor has he to show that he has gained it by long-continued use. With common appendant is contrasted 'common appurtenant.' If a man claims some right which exceeds or swerves from the definition of common appendant and claims it in respect of some tenement that he holds, then he must make a title to it by grant or prescription. Such is the case, for example, if he would turn onto the waste beasts that are not commonable, donkeys, goats, swine or geese, if he would turn onto the waste more oxen or horses than are ' levant and couchant' on his tenement, or if he would claim common in respect of land that is not ' ancient arable.' Now it has, as we think, been sufficiently shown that the terms in which this 1 Williams, Eights of Common, p. 31. CH. III. § 7.] The Manor and The Township. 611 distinction is expressed are pretty modern; an accurate dis- crimination between 'appendancy' and 'appurtenancy' belongs rather to Littleton's day than to Bracton's'. Also it must be confessed that the substance of the distinction hardly appears in Bracton's text. His doctrine is that these rights of common are iura in re aliena and are to be gained either by grant or by adverse user, though he seems to admit a class of cases, not very easily definable, in which it is unnecessary for a claimant to prove any such title''. On the whole, however, a comparison of charters of feoffment with manorial survej'S will bring us to the conclusion that when a lord enfeoffed a tenant with a hide or virgate of land within the manor, then at least if, as was a common case, he used such words as ' with its appurtenances (cum pertinenciis) he comprised in his gift such rights of common as previous tenants of that tenement had enjoyed, or in case the tenement was being newly carved out of the demesne, such rights of common as were enjoyed by the holders of similar tenements in the same manor. And though, for the reason already given, we should be rash in treating every detail in the definition of 'common appendant' as of ancient origin, still we can hardly doubt that in main the distinction between appendancy and appurtenancy, between rights of common which require specific description and rights of common which arise whenever a tenement is given, unless they be excluded by negative words, is very old^ 1 Scrutton, Commons and Common Fields, oh. 2. 2 Bracton, f. 230, 230 b ; Note Boot, pi. 561. Bracton says that if in the same vill there are two neighbours who hold of the same barony and the same fee, then there is common between them, or rather not common, but A right which he prefers to call vicinitas, vicinage. Strictly construed this will mean that if in the same vill there are two freehold tenements held of the same manor there will be this ' vicinage- right ' between them, for if the two tenements are of the same manor then they must be of the same barony and the same [great] fee, unless indeed there is no barony or honour in the case at all. Also strictly construed it will mean that a freehold tenant of a manor wiU always have common or ' vicinage-right ' over any waste of his lord that lies in the same vill, and that the lord will have a similar right over his tenant's waste, for lord and tenant will be neighbours holding of the same barony or honour, though they stand on different degrees of the feudal scale. Thus we should get the rule that in any usual case the freeholder has a right to turn out beasts on his lord's waste without proving grant or prescription. It may be doubted however whether Bracton meant so much as this. The case that he had in view seems to have been that of two peers of the same tenure each of whom has a manor in one and the same vill. But his doctrine is not very plain. 3 Vinogradoflf, VUlainage, 265-272. 39—2 612 Jurisdiction and Gommunal Affairs, [bk. ii. Jhe But, be this as it may, the freeholder's risrht of common is freeholder , • , , , . , • , • , • n and the his Several right, as much his several right as is his tenancy of munity. ^is house. His ' seisin' of this right is fully protected by the king's court, protected by a similar action to that which guards his seisin of his house ; the assize of novel disseisin is supple- mented by an assize of common. It seems fairly clear that before the Statute of Merton (1236) any single freeholder who had a right of common had full power to prevent his lord from subtracting from that right any part of the land over which it had been exercisable^ That statute gave the lord a right to ' approve,' that is, to make his profit of ^ and hence to enclose, to subtract, the waste land, provided that he left sufficient pasture for the commoners. How did matters stand before the statute ? The individual freeholder addresses his lord and his fellows :—' True it is that the waste is superabundant; true that I am only entitled to turn out two horses and four oxen on it ; true that if half of it were enclosed I should be none the worse ofif; true that all of you wish the enclosure made; true that I am selfish : — nevertheless I defy you to enclose one square yard ; I defy you severally ; I defy you jointly ; you may meet in your court; you may pass what resolutions you please; I shall contemn them ; for I have a right to put my beasts on this land and on every part of it ; the law gives me this right and the king protects it.' — This is not communalism; it is individualism in excelsis. Freedom Over the freeholder the manorial court has extremely little foe^oider. po^^r ; for him it is a court of law (though very generally he can evade its action and go straight to the king's court), but it is hardly a governmental assembly. He is very free of custom, he is very free of by-laws. The following brief record tells us much : — In 1223 Richard of Beseville and Joan his wife brought an assize of novel disseisin against Peter of Goldington and ' It is true that the often-disoussed case Fitz. Abr. Gomen, 26 (now printed in Bracton's Note Book, pi. 1975), may look the other way ; but the language of the Statute, of Bracton's text, of the note in Kote Book, pi. 1881, and the following extract from a plea roll of 1221, are in favour of what is here said. 'De illia qui habent magnas terras et non possunt easartare de terra sua vel pastnra pro illis qui habent unam virgatam terrae cum suffieienter habere poterunt oommunam.' This is found on a roll which was formerly numbered as Coram Eege Eoll, Hen. HI. No. 14, m. 31. It seems to be a note made by justices in eyre of a matter that requires reform. 2 Pollock, Land Laws, 173. CH. III. § 7.] The Manor and The Township. 613 thirty-six others for land in Ravensthorpe. ' And all of them come and confess that the tenement is the free tenement of Richard and Joan, but they [Richard and Joan] were not able to cultivate that tenement that year, for in that year the field lay fallow, and because contrary to the custom of the vill the plaintiffs cultivated that tenement, these defendants pastured the corn when it had sprouted.' Richard and Joan are not at pains to deny the custom ; they abide the judgment of the court. ' And therefore it is considered that the said Richard and Joan remain in their seisin and that Peter and the others be in mercy^.' We would willingly know more of this case ; but on the face of it we seem to read that a freeholder can not be compelled by mere custom to allow his neighbours to pasture their beasts on his land, that, to say the least, ' there cannot be a custom for inhabitants as such to have a profit a prendre in the soil of another".' To justify his act each of the defendants should have prescribed for a right of pasture, have prepared himself to prove that he and his predecessors had enjoyed such right time out of mind, or he should have produced a grant of that right. But to require this is to deny the unity of the vill, to make each member of it plead and prove his own title ; what is more it is to require of him a difficult task. And so with the force of by-laws ; what we read will make us think that against the freeholder they are weak. In the name of a custom or by-law the ' community' of a Nottinghamshire town- ship turn their beasts onto the land where the parson has grown a crop ; they are told that this is manifestly wrongful and not to be supported by any by-law; they must pay damages'. Some small power of regulating the rights of common belonging to the freeholders we may allow to the manorial court and its by-laws, but to all seeming it was smalls But the cases of freeholders holding land within a manor Commun- alism among the 1 Note Book, pi. 1662. " Gateward's Case, 6 Co. Bep. 59 b. TiUeins. ' We give an account of this case in a note at the end of this section. * See Fitz. Abridg. Assise, pi. 413, an extremely ill-printed case, seemingly of Edward I.'s time. Apparently however a freeholder was held bound by a by-law to which he had not assented, directing that trenches in the fen in which he had a right of cutting turf should be filled up. See also Y. B. 44 Edw. III. f. 18, 19 (Trin. pi. 13), where it is asserted and denied that commoners would be bound by a by-law to the effect that no one should turn out his beasts before a certain day. 614 Jurisdiction and Oormnurial Affairs, [bk. ii. if they are important, and by no means uncommon cases, are (it may be said) not sufficiently numerous to disturb the reign of communalism. The freeholder though he is in the township, is hardly of the township ; he does not share all the communal burdens ; he is not ' at scot and lot' with the township'. The ' community of the vill' is very generally a body of men whom the lawyers call serfs, who have been reduced to something that is very like serfage by the action of their lojds, and these men, who must be treated as the normal shareholders in the village, form a community, a commune, something that might not unfairly be called a corporation. The villein Certainly there is some truth in this. Between the various mty. members of the village community which is also a villein community there is a strong band of economic interdependence. Not only do they cooperate when they are tilling the lord's demesne, but in all probability there is much cooperation in the culture of their own holdings. Veiy seldom will the peasant be able to plough his strips without the aid of his neighbours ; he will not have oxen enough to draw a plough''. In some manors a tenant is bound by the express terms of his tenure as entered upon the court rolls to discharge, not only the duties which he will owe to the lord, but also the duties which he will owe to his neighbours*"; and we may find a man forfeiting a tenement held by custom because he will neither dwell in it nor cultivate it nor ' do any neighbourliness to his neighbours*,' that is to say, he will take no share in the communal duties. In accordance with this idea we find that the lord treats the community of the vill as an entity that has duties towards him. It is constantly falling into his mercy for breach of duty ; it is amerced for coming late to court, for committing waste, for damaging his crops, for not cleansing the pond, for not selling 1 This point is brought out by some of the manorial extents, e.g. those in Cart. Eams., where it is specially noted of some freeholder that he participates wholly or in part ' cum villata.' " Nasse, Agricultural Community (transl. Ouvry), pp. 42-45. But we can not find any evidence of oxen that belonged to the community. As to the ' common boat ' of Newton, which Nasse mentions, doubtless the lord was the owner of it. 8 Durham Halmotes, pp. 23, 29, 34 etc. :— ' reddendo antiquam firmam et facieudo domino et vieinis quae incumbunt.' In this paragraph we shall cite these interesting rolls though they belong to the fourteenth century. ' Ibid. pp. 56, 63: — 'nee aliqna vicinitas inde fit vieinis'; 'nee invenire unum tenentem qui potest tenere vicinitatem.' CH. III. § 7.] The Manor and The Township. 615 him poultry, for not having a common pinder, for not repairing the sheepfold, the mill, the smithy, when commanded to do so^ All the tenants of the vill owe one mark for an axletree delivered to them and lost by their default". The lord sells the herbage of his land to the tenants of the vill, he leases the demesne land to them as a body. The community contracts with him and with others. The community of the vill of Monkton, except ,T. T. and W. T., is compelled to pay damages to W. S. for damage done in his corn'. On the other hand Fair John has broken a covenant with the community of the vill of Wolviston by not paying the shepherd his salary, to the damage of the community, 6s. 8cZ.*. All manner of commands are given to the community, and the community itself makes all manner of by-laws (byrlawes, bileges) ^. To mark off the sphere of the commands issued by the lord or his steward from that of the by-laws made by the community itself, would be hard, as hard as to mark off the sphere of royal ordinances from the sphere of parliamentary statutes^ The lord is a constitutional king, and when there is to be drastic and permanent legislation he acts with the counsel and consent of his court ; but still over the villeins and the villein tenements he is every inch a king. If the common is to be stinted the consent of the court will be obtained, but a simple injunction will serve to tell all the tenants that they are not to keep geese in the vilP, not to buy beer save at the lord's brewhouse^, not to sell growing crops ^ that they must offer their fish and poultry to the lord before they look for other purchasers", that they must find beds for his officers when they make their rounds", that they must not associate with John Lollis, who has made too free with his knife^", that they must not sue in other courts'^ that they must not throw about such words as 'nativi' or 'rustici,' though nativi and rustici they assuredly are"- Indeed here lies 1 Durham Halmotes, passim. ^ Ibid. p. 83. ^ ibjd. p. 20. " Ibid. p. 22. ' See Skeat, Diet. s. v. by-law. There seems no doubt that the word lylaw means townshiplaw ; it often occurs in the form byrlawe. 8 See e.g. Durham Halmotes, where two formulas are constantly repeated, 'Iniunotnm est omnibus teneutibus villae,' ' Ordinatum est ex oommuui assensu.' r Durham Halmotes, p. 45. » Ibid. p. 45. » Ibid. p. 90. 1" Ibid. pp. 39, 49. " Ibid. p. 35. i" n,id. pp. 49, 50. 18 Ibid. pp. 35, 39. " Ibid. pp. 83, 40. Two men have just been proved to be nativi when a command against the use of this word is issued. 616 Jurisdiction and Communal Affairs, [bk. ii. the legal possibility of all this communal organization of the township's economy. When the freeholders are left out of sight it appears as a mass of villeins, or at any rate as a mass of men holding their lands by villein tenure. Let one of them rebel against the community, its customs or its by-laws, his body it may be is safe against imprisonment or exile (exile from the vill is by no means uncommon) ^ but his land is at the lord's mercy and will be taken from him, the community sanctioning and applauding the punishment^, hoidersand ^^ dealing with freeholders one must be very careful indeed, the TfiUage. otherwise they will be off to the king's court, which shows but little favour to restrictive customs and by-laws, which will not open its doors to the community as such, but will make each individual asserter of communal rights answer why he has entered on another man's soil or impounded another man's cattle. Of course there can be no talk of enforcing against freeholders the mere commands of the lord, even though they be backed up by the common assent of the township, at all events when such commands have nothing to do with the tenement. The freeholder may sell fish and poultry to whom he pleases; he may associate with John Lollis if he pleases, provided bhat John be a lawful man ; it will be difficult enough to make him take his corn to the common milP, impossible to make him lend the steward his bed. But further, as we have already seen, it will be by no means easy to diminish his right of pasture or to prevent him from cultivating his land when and how he chooses. When injunctions are laid upon the vill, when by-laws are made for the vill, the freeholders must be treated as exceptions. It is ordained that no tenant of the vill of Ferry Hill shall put horses in the oxen's pasture, save the four liheri, each of whom may put there the horse on which he rides*. All the tenants of the same vill, except the four liheri, are amerced because they refused to have a common reaper appointed for them by the lord's officer^ The mill at 1 There are many oases on the Littleport rolls in which offenders are ' removed from the vill.' ^ Durham Halmotes, p. 46 : G. F. is ordered to manure his land and to remove the crops that are growing on it without the lord's licence and to behave like his neighbours on pain of losing the land. 3 Note Book, pi. 161 : 'Nota quod liber homo non tenetur sequi molendinum domini sui nisi gratis veUt.' - Durham Halmotes, p. 69. » Ibid, p, 109, CH. III. § 7.] The Manor and The Township. 617 Ferry Hill fell into disrepair. In 1366 order was given to distrain the free tenants to repair it while all the other tenants were ordered to repair it by the next court day. In 1368 the freeholders despite all orders for distraining them had not done their share of the work ; the customary tenants had done theirs^. But of the exceptional position of the freeholders we have said enough ; over the customary tenants, especially if they be unfree men, the village court has great power, for it is the lord's court. The lord can treat them as a community because he can treat them as villeins. Still it would be easy for us to overestimate the communalism Commun- that there is in the vill, even when there are no freeholders to collective be considered. In the first place we must notice that mere '" collective liability for transgressions implies little communalism, little permanent organization, while it certainly does not imply, though it does not exclude, the idea of a corporation. If the vill can be fined and amerced for neglect of duties owed to the state or to the lord, so also the county and the hundred can be fined and amerced for false judgments, for murders, for robberies ; but yet it has no common purse, no property. The county community has no property; the hundred community has no property — though perhaps some puzzling but unprofit- able questions might be asked about the ownership of the piece of ground upon which the shire holds its moot. So likewise the township normally has no property. When a judgment for damages, fine or amercement is giveu against it, this 'it' at once breaks up into a mere collection of individuals who are jointly and severally liable for the whole amount, while as between themselves their proper shares are settled by the system of commensurable tenements ; all virgaters pay equally, all cottagers equally. Even when the manor is farmed by the villeins, as is The com- » munity as sometimes the case, we may overstate the degree oi commu- farmer. nalism that there is in the arrangement. Sometimes the king lets one of his manors to the men of that manor^ ; sometimes other lords do the same. The lease in such a case seems generally to have been a lease at will ; the manor was farmed, but not farmed in fee, though there may have been some places with no pretensions to be called boroughs where the men of the vill had even the ' fee farm' of the vill. Sometimes ' Durham Halmotes, pp. 51, 73, 75. " Madox, Pinna Burgi, 54-56. 618 Jurisdiction and Communal Affairs, [bk. ii. The manorial custom gives several rights not communal rights. the lease, if such we must call it, seems to have comprised all' the sources of revenue that the lord had in the manor, some- times some of these were excepted out of it. Thus the Prior and Convent of Worcester have a manor at Hallow; 'the court' with the appurtenances, and two carucates of the demesne have been let to the villeins at a corn rent together with the meadows and casualties and heriots and the villeinage^, but the convent still retains in its hand a barn, a grove, a moor, a piece of land formerly a vineyard, some meadow and some arable land. But even in such cases, which are by no means usual, we must not jump to the conclusion that the villani are carrying on the cultivation of the demesne land as 'a joint stock affair' by means of beasts and implements which belong to them in common or to a corporation of which they are the members. At Hallow the arable part of the demesne which has been handed over to them seems to be broken up into physically distinct shares, each of which is held by an in- dividual villanus at a several rent. The upshot of the arrangement seems to be this : — the villagers, instead of being placed under a bailiff of the lord's choosing, are given the right to elect their awn firmarius, and to him each of them pays the rent due from his ancient villein tenement and also the rent due in respect of any part of the quondam demesne that he has taken, and out of these rents, the profits of the court, and such casualties as heriots, the elected farmer has to pay 'the farm' of the manor'- On the other hand, the lord obtains the joint and several guarantees (if we may use so definite a term) of all his tenants for the whole ' farm.' If the farmer can not pay the rent, the lord can attack all or any of the tenants ; if on the contrary the farmer occasionally makes more than the ' farm,' very likely he keeps the surplus to himself or possibly it is expended in festivity; if a surplus becomes a normal phe- nomenon, then the rents of the individual tenants will perhaps be reduced. But the .lords, we may be sure, took good care that these ventures should not be very profitable. But, to return to the normal case in which there is no farming, we see that the rights given by the manorial custom 1 Worcester Eegister, p. 47 a: 'Ouria cum pertinenoiis et duae carucatae terrae de dominioo cum pratis et proventibus et herietis et vilenagio traditae sunt viUanis ad firmam.' " See the survey of Hallow ; on p. 49 b the firmarius is mentioned. CH. III. § 7.] The Manor and The Township. fil9 are, at least for the more part, several rights given to individuals. The tenant in villeinage holds his house and his virgate by a title that is in no sense communal, and to this tenement are annexed rights of pasture, customary rights of pasture, that belong to him and only to him ; he enjoys them not because he is an inhabitant of the vill but because they are annexed as appurtenances to the tenement that he holds. He transmits an inheritance to his heir as the freeholder does, nor, so far as we can learn, does custom give the court much power to regulate these rights. When a statement of them is made and enrolled it generally professes to be, not a new ordinance, but an ancient custom, and the function of the by-laws that are made is, at least in theory, rather that of confirming and sanctioning old, than that of introducing new rules, though new rules can be made from time to time about minor matters. Looking at the vill from the outside, contrasting it with S,'^^^ °* other vills, men naturally use phrases which seem to attribute ship dis- rights to the community as a whole. The township of Sutton, ^-^erJ or the community of the vill of Norton, is said to pasture its or '^^*™™™- their cattle (often enough the verb that follows villata is in the plural number) over a particular moor. But just so a sheriff's bailiff will be charged by jurors with taking the beasts of the- vill of Weston. The township as a community has no beasts ; the beasts that have been taken belonged in severalty to certain individual men^. Even so with the rights of pasture; on analysis they are found to be the rights of certain individual men ; they are exercised in common, but they are several rights. Lastly, when, as may sometimes happen, the ownership of a Co-owner- tract of land seems to be attributed to a community as a whole corprareite we have still to face that difficult question which has of late P^P^^^y- been exercising the minds of continental historians : — Have we before us a persona ficta or have we merely a group of co- owners^ ? England affords but few materials for an answer to ' E. H. ii. 307: 'ballivi de Tychill nunquam oessaverunt oooasionare villatam de Blida, gravando illam villatam per plares districtiones iniuBtas sibi factaB.' 2 What is the legal nature of the old German community (Genossenschaft) 1 Is it a group of co-owners ? Is it an wniversitas ? Is it tertium quid 1 This question raised by Beseler (Volksreoht und Juristeurecht, Leipzig, 1843, pp. 158 fi.) has of late found many answers. See Gierke, Deutsche Genos- senschaftsreeht ; Heusler, Institutionen, i. 253 fE. ; Sohm, Die deutsche Genossenschaft, Leipzig, 1889. If there is to be any further discussion of ' English village communities ' this vital question must be faced. 620 Jurisdiction and Communal Affairs, [bk. ii. this exceedingly important question, for anything that even by a stretch of language could be called a communal ownership of land, if it had ever existed, had become a rare and anomalous thing before the stream of accurate documents begins to flow. But what we see will tend to make us believe that it was much rather • as a mere group of co-owning individuals than as a corporation that the members of the vill thought of themselves when they had a chance of applying either the one idea or the other. The manner in which the ' quasi-corporateness ' of the township was dissolved at the touch of law may be illustrated by an instructive story which comes to us from Dunstable Priory. In 1293 the Prior brought an assize of novel disseisin against seventeen defendants concerning land at Toddington. Some of the defendants cojifessed themselves the villeins of John Peivere; others, who were freeholders, sought to justify what they had done. Thereupon the Prior pleaded that the lands in question, which seem to have consisted of many small disconnected strips, had been in the seisin of the men of the township of Toddington, and that they by their unanimous will and assent enfeoffed his predecessor. Prior Simon, to hold to him and his successors for ever. The jurors endorsed this ■statement, adding that all the persons who had any right in the said land were congregated in one place at a court held at Toddington, and with one consent granted the land to Prior Simon and his successors, at a rent of six pence a year payable to the said men of Toddington. Prior Simon (the jurors say) held the land and paid the rent ; the present Prior for several years held the land and paid the rent; the defendants have dispossessed him\ The Prior recovered his seisin. Now this was a purely possessory action; the Prior had only to prove (and he did prove) his seisin and disseisin; the soundness of his title was not in question. Still his title was a feoffment by the men of the township of Toddington effected in the court of Toddington. But then we also learn that when this feoffment was made the lord of Toddington, John Peivere, was an infant in ward to the queen. The men of Toddington who were defendants in the assize relied on this ; their case was that the Prior got the land, not from them, but from the queen's bailiff. Then the Prior by expending a considerable sum obtained from John Peivere a confirmation of the land 'into which we had 1 Ann. Duustap. 378. CH. III. § 7.] The Manor and The Township. 621 entry by the community of the men of Toddington,' and for the future the Prior ' by the attornment of the men of Toddington ' paid the rent of six pence, not to them, but to their lord'. We see then the men of Toddington making a feoffment, the Prior dealing with them as capable of making a feoffment, of receiving rent, and then we see this title melting away before the claims of the lord. But further, we see the defendants endeavouring to avoid a feoffment made by the community in its court, and one of the reasons that they urge is this : — When the feoffment was made some of us were under age. Such a plea gives us an instructive glimpse into their minds. The men of Toddington suppose that they have land ; they ignore their lord. Let us for a moment do the same ; let us suppose that John Peivere's rights have been gained by modern usurpations. What then, we may ask, is the men of Toddington's theory of their own title ? That they form a corporation ? That ' the community ' in its court can alienate its land ? No, but that they hold this land as co-owners, and that unless every single tenant is of full age and joins in the act there can be no alienation^ However, except by way of rare exception, the men of the The vill do not hold any property as joint tenants or tenants in ^a^y has common. Each of them has his house, his virgate or croft ; "glits. each of them has or may have certain rights of pasture, of turbary, of fishing or the like in the lord's wastes or waters ; but this is all. The consequence is that they very rarely come before the courts as co-plaintiffs. This is not due to any speculative doctrine about the way in which corporations ought to sue. It is not due to the rule that an unincorporated body of persons can not sue under a general name. At present there is no such rule. As we shall see below when the boroughs come before us, the courts are very ready to listen to complaints preferred in the name of classes of men who have some common interest to assert; the lawyers do not yet demand the appointment of an attorney under a common seal. ' The citizens ' oi A,' the burgesses ' of B can sue ; their mayor or their bailiffs attend the court on their behalf; and even 1 Ann. Dunstap. 392. 2 See also Madox, Firma Burgi, 41. Under Edward III. it was alleged that the community of the vill of Tetsworth, in Oxfordshire, had given a house and garden to the church of that vill ; but the bishop of Lincoln proved that this was untrue ; he and his predecessors had always been seised of the premises. 622 Jurisdiction and Communal Affairs, [bk. ii. so * the men ' of C — which is a mere rural township, or which is a hundred — can sue and be sued, their bailiff or their reeve with four men will jsepresent them. They can sue and be sued under a general name, if there is anything for them to sue and be sued about. But then this rarely happens. They hold no lands, they own no franchises, they, taken as a group, have no rights to assert or to defend. The great exception to this rule is that the practice of assessing taxes and imposing fines upon communities may give rights to a community. Thus we may read how certain named men of the hamlet of Bordesdon had to answer in the Exchequer to 'the men of the vill of Little Hormead ' for not contributing to a fifteenth ; it was a disputed question whether this hamlet should contribute towards the amount assessed on Little Hormead or to the amount assessed on Braughing^ Such disputes the Exchequer must often have had to decide, and in so doing it considered that ' the men ' of a vill were sufficiently represented by a few of their number. So also one township in the fens would sue its neighbour for a contribution towards the cost of maintaining and repairing the sewers, and would base its claim on the custom and use of the marshy But within the sphere of private law we seldom see the men of the vill joining to bring an action under the general name which covers them. Some exceptional cases may be found upon the plea rolls ; the line which divides the men of a vill from the burgesses of a borough is being drawn not by speculative theories but by practical needs ; there is great need for actions by 'the burgesses,' for the burgesses have valuable franchises to assert, franchises which can hardly be regarded as the sum of the rights of individuals ; but with the mere township it is otherwise. The community of the township is not incapable of suing, but it rarely sues, for it has nothing ' Firma Burgi, 110. 2 Assize Eoll, Lincoln, No. 481 (57 Hen. III.): -A. B. et G. D. pro se et tota communitate villatae de Helpingham optulerunt se versus E. F. et totam communitatem villae de Donyngton, et G. H. , J. K. de Bykere et totam oommunitatem eiusdem villae de plaoito, quare cum marisous de Helpingham exaquari vel assewari debeat et soleat per oursum ouiusdam aquae in mariscum in Donington et Bykere secundum consuetudinem et usum marisoi quem oursum praedioti A. B. et alii et praediotae communitates reparare et sustinere debent et solebant etc' The necessity of maintaining sewers, sluices, and water-gates sometimes gave rise to elaborate treaties between the freeholders of a large district. See, e.g. Selby Coucher, ii. 286. CH. III. § 7.] The Manor and The Township. 623 to sue about ; it is not incapable of rights, but generally it is rigbtless. No lawyer's theory keeps it out of the courts. What is lacking is not a common seal but common interests^ Yet once more shall we return to the township; by that time we shall have something wherewith to contrast it, namely, the borough or city ; we shall (it may be hoped) have learnt in the interval a little about the most highly organized of our English ' communities.' Additional Note. The following case seems worthy of rescue from oblivion. It is found on the Coram Rege KoU (No. 132) for Pasoh. 20 Edw. I. (a.d. 1292), m. 6 d. The scene is a village in Nottinghamshire, Carlton in Lindrick. llichard de Fumeys of Carlton and six others are attached to answer Thomas de Evesham, the parson of Carlton, why with force and arms they depastured his com at Carlton and carried it off. The plaintiff counts that on the 22nd of July 1291 they mowed his rye in a field called Persones Breck and depastured his oats by their cattle for a whole week. Eichard de Furneys pleads that he is lord of the vill of Carlton, that the plaintiff sowed his (Richard's) land when he (Eichard) knew nothing of it, and that when he (Richard) perceived this he turned in his cattle. The other defendants plead that the locus in quo is their common pasture. The plaintiff replies that it is the soil and dower of his church, and that being sown the defen- dants wrongfully pastured it. Issue to the country. The jurors say that the land is not the several land of Eichard, nor of Thomas, nor of the others, but is the common of the whole community of the said vill, and from of old the custom in the said viU was and still is that the lord of the vill and the parson and every free man of the vill may come to the said 1 Actions by or against ' the men ' of places that^ are not boroughs will be found in Placit. Abbrev. pp. 2, 3, 24, 32, 95, 138, 140. The case on p. 95 is instructive :— ' The men of Tbanet ' complain that the Abbot of St Augustine's has exacted undue services, and they put in their place thirty named men to sue for them ; their claim faUs and they are adjudged to be in mercy, ' save the other men of Thanet who took the abbot's part.' Thus after all the plaintiffs • are not all the men of Thanet, nor do they represent all. Then on p. 140 there is an action of trespass by the Abbot of Faversham against ' the alderman and the whole community of that vill.' Judgment for damages is given against ' all the men of Faversham' except four named persons. Here agaia each individual ' man ' is acquitted or convicted on bis own merits. See also Madox, Firma Burgi, 65 : the king and ' the king's men of Headington ', complain in the Exchequer that the Prior of St Frideswide has withheld from the said men a customary dinner. No doubt many other instances might be found, but having regard to the number of viUs in England and to the frequency of actions in which the boroughs take part, such instances seem very rare. 624 Jurisdiction and Communal Affairs, [bk. ii. place on the morrow (7th Jan.) of the Epiphany after sunrise with his plough, and as many furrows as he can cut [et quot seliones trahere potent umico suleo in quolibet selione], so many may he sow in the year, if he pleases, without asking for a licence, provided that he applies no compost ; and if he applies compost he may not sow the composted land without the licence of the community of the said vill ; and if without licence he sows the composted land the community may depasture with its beasts the land so sown at whatever time it pleases. And they say that the plaintiff Thomas in the said year composted five acres and sowed them with winter seed, all the men of the vill being aware of this ; and in the same year he sowed with spring seed seven acres in the said. place that were not composted, and he weeded Isarclavit] the whole land and afterwards without anyone opposing him [sine aliqua contradiatione] he held the land until the 22nd of July aforesaid ; and on that day the defendants came and depastured with their beasts both the composted and the uncomposted laijd. And they say that the crop on the composted land was worth 15s., and that on the uncomposted 10«. 6d. Being asked if the said Thomas sought a licence to sow the composted land, they answer — No. Being asked how long the said Thomas had sown the said land, they say — Since the time when he became rector, that is, for fifteen years. Being asked about the damage that Thomas suffered by reason of the destruction of the said corn over and above its value, they say, that he is damaged to the amount of 60s. Judgment : — And whereas it is found by the verdict that the predecessor of the said Thomas was in good and peaceful seisin of the said land for fifteen years and that the said Thomas found his church seised of it and continued the estate of his predecessor for ten [sio] years without disturb- ance by the community of the vill ; and whereas the said Richard and the others destroyed the said corn by their beasts and depastured it when it was ripe and fit for mowing, which act is a manifest injury and not to be upheld by any by-law [quod quidem factum manifeste est iniuriosum et non per aliquod hirlawe sustinendum\ ; it is considered that Thomas shall recover his damages for the destruction of the corn, which are taxed by the jurors at 25s. Qd., and the further damages, which are reduced by the justices to 20s. The custom which would prevent a man from composting the land that he has seized, looks like an attempt to prevent the establishment by an individual of a right to have the same strip year after year. But the most curious point is that this community has no notion of communal cultiva- tion, and has no plan of apportionment less rude or individuahstic than that of instituting a plough race. And this in 1292. In another record, Assize RoU, Lincoln, No. 494 (9 Edw. I.), m. 10 d, we have found a right of seizing for temporary cultivation part of the waste. It is the custom in the vill of Blyborough that in every third year, by the common assent of those who have lands in the said field, they may make ' innams ' {innamyax, intakes) and sow them with beans, peas and vetches ; from time beyond memory the men of the vill were able to make such innamyas. 582 Jurisdiction and Convmunal Affairs, [bk, ii. neighbours he gets as good a 'judgment. of his peers' as a free man will get in the king's courts. Very late in the day (for we can not trace this further back than a Star Chamber case of Henry VIII.'s reign) we hear a doctrine which, if it has any historical warrant at all, suggests that no lord could hold a court even for his bondmen unless he had free doomsmen, for it is said that there can be no manor without at least two free- holders owing suit of court. Interpret this doctrine how we may, we can not believe it ancient. As to the question about the use of words we shall speak below ; but we do not believe that all the maneria of the twelfth and thirteenth centuries comprised freeholders. As to the questions of law, we can not find that a lord's jurisdiction over free men was in any wise dependent upon his having villein tenants, or that his juris- diction over his villeins demanded the existence of freeholders. Very little weight should be ascribed to the unreasoned, un- explained dictum of the Court of Star Chamber delivered at a time when the feudal courts were senile and villeinage was all but dead, and yet this dictum seems to be the only source of the famous doctrine that a manor can not exist without two freeholders \ § 6. The Manor. The And now at length we may go up against the manor. We may make our task the easier if we observe that ' the manor ' is more prominent in modern theories than in medieval texts. Bracton rarely uses the word manerium. Only in one context does he give anything that can be called an explanation of the word and it explains very little. A person who brings an action for land must specify the land that he claims. In so doing he will perhaps use the word manerium, and therefore it is necessary to note that manors and vills are not all one, that sometimes a manor and a vill bear the same name, that some- times a manor contains several vills, and again that a manor is not the same thing as a mansion". But what is -the essence of a manerium we are never told. Such records of litigation as ^ Select Fleas in Manorial Courts, vol. i. pp. Iz-lxxiii. 2 Bracton, f. 212, 434 b. manor. OH. III. § 6.] The Manor. 583 we have iu print give us no further help. Sometimes, though not very often, the object demanded in an action is a manor, and we may easily find disputes as to whether a particular tenement is or is not a part, or 'a member' of a particular manor. The word is used in conveyances, and doubts may arise as to what has passed to the donee by a gift of 'the manor of Dale.' But in conveyances the term is much less common than we with our theories of ' a manorial system ' might expect. Even when we turn to the Hundred Rolls and read the elaborately detailed descriptions of tenures and tenements, of the groups formed by lords and tenants, though we may well think that we are reading of manors, still we may often read through many pages without seeing the word mcmeriutn. To do without it is very possible. We read, for example, that in Lol worth Philip de Colville holds a knight's fee and then how he has freehold tenants and customary tenants; how the abbot of Ramsey has 6 hides and 60 acres in Girton, how he has freehold tenants and customary tenants; probably Philip and the abbot are deemed to have manors, but we are, not told this^; some jurors will speak of maneria, others will not. There is evidently no great reason why they should use the word. May we hope that we have shown, as Bracton showed, that much may be said of the law of tenure, of status, of juris- diction, though that word be never employed ? In a sense therefore we must deny that in the thirteenth Mcmor not century the word manerium was a technical term, that it could v^ord. be placed in the same category with villa, feodum unius militis, liberum tenementum, villenagium. Of course any word that is commonly used by men in the transaction of business is likely to come before the law-courts and to be discussed by pleaders and judges. A modern court may be called upon to decide whether a four-roomed cottage was fairly described as ' a country house'; but still, ' country house' is not a technical term. In our own day the term 'estate' is constantly used by Englishmen to describe tracts of land ; but who can accurately define its meaning ? If we read in a biography that the hero had 'an estate in Kent' we should expect him to have had more than a rood of cabbage-garden ; but how much more ? Must there have been a house and some fields ? must he have - E, H. ii. 456-7. CH. III. § 8.] The Borough. 625 § 8. The Borough. Certain vills are more than vills; they are boroughs {hurgi); The city, certain boroughs are more than boroughs ; they are cities (civitates). The latter of these two distinctions has little or no meaning in law. A usage, which seems to have its roots in the remote history of Gaul, will give the name city to none but a cathedral town*. This usage is in general well observed. In 1302 the sheriff of Cornwall returning the names of the burgesses of Launceston and Bodmin who are to appear in parliament, says that there are no cities in his bailiwick ; the sheriff of Essex and Hertfordshire says the like v/hen he announces the result of elections at Colchester and Hertford^. However the usage was not very rigid ; Shrewsbury is called a city in a judicial record of Edward I.'s reign'; at an earlier date Cambridge was called a city* ; and in Domesday Book the name city is given rather to county towns than to cathedral towns. But at any rate the civitas was also a hurgus, the cives might be called hurgenses and the communitas civium or com- rmmitas burgensium was a villata and oommunitas villae^. Now, at least from the early years of the thirteenth century The viii onwards, the distinction between the mere villa and the hurgus borough was a familiar, if not a very precise, outline of public law. At recurring intervals the justices in eyre came into the county; each vill was to be represented by its reeve and four men, while each city or borough was to be represented by twelve men. Thus when at a later day the sheriffs were bidden to cause every city and borough to send representatives to parlia- ment, they knew what the command meant. If however we could bring one of these sheriffs to life and cross-question him as to the definition of a borough, very possibly we should deem his answers wanting in legal accuracy ; very possibly we should get little more from him than — ' This place is a borough, for it has always been treated as such ; that place is not a borough, for I can not remember its having ever sent twelve represent- 1 B. A. Freeman, MaomOlan'a Magazine, 1889, p. 20. 2 Pari. Writs, i. 119, 120. ' Madox, Firma Burgi, p. 128. * Placit. Abbrev. p. 98 : Co. Lit. 109 b. ' Firma Burgi, chap. vi. P. M. 40 626 Jurisdiction and Communal Affairs. _[bk. ii. atives to meet the justices in their eyres.' In the eyre of 1221 the vill of Fairford in Gloucestershire claimed to behave like a borough : its men wanted ' to swear by themselves ' ; the county of Gloucester testified against the claim : — it had no warrant in practice*. If we could induce our sheriff to go behind practice, to tell us what in his opinion it was that made a borough to be a borough, he would probably refer us, not to just one attribute, but to many various attributes. In particular, if we talked to him of incorporation or artificial personality, unless he was an unusually learned sheriff he would be puzzled. He would tell us rather that the boroughs had franchises (libertates), some more, some fewer, and he would in the end refuse to consecrate any particular libertas or any combination of libertates as at once the necessary and the sufficient essence of a borough. Our theme. We have not to write a history of the English boroughs. That task, even if accomplished only in outline, would be a very long one, so various from first to last have been the fortunes of different towns. We shall merely attempt to detect and set in order the more important of the legal elements which make a borough something other than a mere rural township. The When Domesday Book was made there were perhaps some oent."liii!' fif^J towns in England that might claim to be called boroughs. The word hurh was an old word and for a long time past it had borne a legal meaning. But the little that we can say of the Anglo-Saxon burh and the burgus of Domesday Book will be better said elsewhere. A new period begins in the twelfth century, the period of charters. Others have traced, and yet others in more perfect detail will trace, the chronological seqfuence of these charters, which dole out franchises one by one in return for hard money. Placing ourselves at the corona- tion of Edward I. and remembering that the number of towns with some right to style themselves boroughs has been largely increased and now exceeds a hundred and fifty, we may ask what is the legal conception of -a borough ? The answer seems to be, It is a mass of franchises, or, It is a place endowed with a mass of franchises, or again. It is a group or body of men, a community or corporation, enjoying a mass of franchises. First Itg we may look at the most usual of these franchises, grouping franchises, them under various heads and saying a little of the organization ' Maitland, Pleas of the Crown for Gloucestershire, pi. 157. CH. III. § 8.] The Borough. 627 that they imply, and then we may ask the question, To whom do they belong; in what subject do they inhere' ? (i) Jurisdictional privileges. Usually there is no need for Jvirisdic- the charter to grant the right to hold a court, for the court prfvUeges. exists already either in the form of a borough court (for the old hurh had its moot centuries ago) or in that of a seignorial and manorial court. Indeed one of the ' liberties ' that the burghers sometimes seek is that their court, their port-moot, or borough- moot shall not be held too often — not more frequently than once a week. On the other hand a common clause provides that the burgesses, except the king's moneyers and servants, ' shall not plead beyond the walls ' of the town, unless it be for tenements which lie elsewhere. Then sometimes a further attempt is made to define the competence of the court in a manner advantageous to the burgesses : — if a debt be incurred in the town, the plea upon it is to belong to the borough court. Franchises of this kind are of great importance in the history of the boroughs because they frequently give occasion for communal action. If a burgess is impleaded in the king's court it behoves the oflScers of the borough to appear there and ' claim their court,' and any negligence in this matter is likely to be prejudicial to the borough as showing that it is not ' seised ' of its franchises. Not unfrequently, again, the burgesses enjoyed in their court a procedure differing from that of the royal court ; they were protected against innovations and reforms. When we find that trial by battle is excluded from the borough we may for a moment think that civic justice is in advance of royal justice; when on the other hand we find that trial by jury is excluded, that the accused burgess of the thirteenth century even in criminal cases will wage his law, while the non-burgess must abide the verdict of burgesses, we know that from Henry II.'s day onwards civic justice has been falling 1 Besides the various borough charters we shall rely on the Munimenta Gildhallae, the Domesday of Ipswich (Black Book of the Admiralty, vol. ii.), the Eecords of Nottingham (ed. Stevenson), the Leet Jurisdiction in Norwich (Selden Soc), a Norwich Custumal, a manuscript copy of which has been kindly lent to us by the Eev. W. Hudson, the Winchester Custumal (the French version of which is given by Smirke, Archaeol. Journal, ix. 69, and the Enghsh version by Toulmin Smith, English Gilds, 349) and the Liber Custumarum Villae Norhamptoniae, printed in Northamptonshire Notes and Queries, vols, iv. V. We owe much to Gross, Gild Merchant, and to Madox, Firma Bnrgi. 40—2 628 Jurisdiction and Com/munal Affairs, [bk it. behind royal justice, has been becoming antiquated and selfish^. This may not always be its own fault; it has not been permitted to improve itself; it is a chartered justice and must carefully keep within the limits of its charter. Civil juris- Valuable though these courts may have been to the towns- folk, they were not suffered to do much harm to the cause of common law. Some of the boroughs developed a possessory procedure of their own ; an ' assize of fresh force ' took the place of the king's assize of novel disseisin'' ; but even in London a proprietary action for a burgage had to be begun by the king's writ of right, and when that writ was sent to less favoured towns it contained the usual threat of the sheriff's interference*. Again, if the tenant in possession vouched to warranty an outsider, a ' foreigner,' the borough court could proceed no further as it had no power to make the vouchee appear. The party dissatisfied by its judgment could bring the matter before the royal court by a writ of false judgment. From time to time justices commissioned by the king held a session at St Martin's le Grand to correct the errors of the London busting. The Londoners held their privilege so high that they would refuse to answer even in the court of a fair that they fre- quented : burgesses of other boroughs though they had the same words in their charters were less haughty or more politic*. It may be doubted whether the burgesses of a well-favoured borough could always decline the jurisdiction of the county court ; for that court was sometimes held within their walls ; the county court of Gloucestershire was held in the very gildhall of the burgesses. Criminal The Criminal justice of the boroughs seems seldom to have tio™ *" stretched to any higher point than that of infangthief and utfangthief, in other words, the punishment of criminals caught in the act. The boroughs had to appear before the king's justices in eyre. It was privilege enough for them that they should appear there by twelve of their own men as though they ' Munimenta Gildhallae, i. 102-112. Mr Eiley in his marginal notes misses the distinction between compurgation and trial by jury. Select Pleas of the Crown, i. pi. 82. 2 Muuim. Gild. i. 114, 195 ; Ipswich Domesday, p. 66 ; Norwich Oustumal, c. 17. 3 Eeg. Brev. Orig. f. 2 b. * Eiley, Chronicle, p. 51. Select Pleas in Manorial Courts, i. 138-160. CH. III. § 8.] The Borough. 629 were hundreds, and that thus no foreigners should make pre- sentments about what had happened within the walls. Even the city of London had to undergo visitations; the gaol of Newgate was delivered by royal commissioners and an occasional eyre held at the Tower would serve to bring the stifFnecked citizens to reason, for they were like to find that in the eyes of the king's advocates their choicest liberties had been endangered by abused Some of the more important boroughs had also acquired the Return of franchise known as 'the return of writs.' Doubtless it was very valuable to them, for, so long as they had it not, the sheriff's officers would constantly be entering the town in order to serve writs and execute the processes of the king's court. Nevertheless it was not acquired until late in the day. John was, to say the least, very chary of granting it". • (ii) Tenurial Privileges. When the period of charters Privileged begins burgage tenure already prevails in many of the large towns ; the townsfolk already hold their lands and houses at money rents, and merely as tenants they require no further favours. Otherwise is it when what has hitherto been but a rural manor is to become a liher hurgus. In such a case there will be a .commutation of services, a release from agricultural labour. Sometimes a free power of alienating his tenement is conceded to every burgess, sometimes it is distinctly said that he may make a will or make an heir ; but in general the power, very commonly assumed, of bequeathing 'like chattels' the burgage tenements, (or at all events tenements which the testator had purchased and not inherited,) seems to have been ascribed to custom rather than to express grant. Even when chartering a great town it was often thought expedient that the king should declare that the sons and daughters and widows of the burgesses should be free to marry as they pleased. In the great towns the formation of a court enjojdng royal Mesne franchises seems to have had the effect of reducing the mesne in the tenures to political insignificance. We shall have occasion to °^°^^ ^" observe hereafter that at the time of the Conquest the burgesses of a great town were in many cases a heterogeneous 1 See the account of the eyre of Edward II. 's day at the Tower of London which lasted for twenty-four weeks ; Munimenta Gildhallae, vol. ii. pp. Ixxxiv-c., 285-432. 2 Becords of Nottingham, i. 40. Only in 1255 did Nottingham acquire it. 630 jurisdiction and Oommunal Affairs, [bk.. li. mass; some of them held directly of the king, but others were the tenants, the justiciables and the burgesses of this prelate or of that baron. Seldom were the burgesses of such a town 'peers of a tenure'; seldom was the soil an unbroken stretch of royal demesne. Not only might its walls comprise many a private soke, but some of the townsfolk were accounted to belong to the rural manors of their lords. When therefore the king under pain of his full forfeiture ordains that none of them need answer in any court outside the borough for any tenement within the borough, he is practically detaching these burgesses from the manors to which they have belonged and is defying the principle of feudal justice. The men who have settled round his hirh and his market are his burgesses whosesoever tenants they may be. Here and there a lord who held some considerable quarter of a royal borough might keep up a court for his tenants and, having acquired for himself and them some immunity from taxation, they would refuse to mix with, to be at scot and lot with, their fellow townsmen. But a small group of men who formerly were reckoned to belong to some distant manor would soon be merged in the general mass of burgesses. They would still pay rent, not to the king, nor to the king's farmers, but as of old to their lord; but no other connexion would bind them to him, he would soon sink into the position of a mere recipient of rent^ Within the boroughs we hear little of subinfeudation ; the burghers transfer their tenements in the borough court ; the rights of the mesne lords are forgotten and then it is said that if any tenement in the borough escheats, it escheats to the king. Such in Edward II. 's day was the rule in the city of London where many 'barons' had once had sake and soke^ Seignorial The rapidity of this process varied of course from borough in the to borough. In some of the smaller boroughs chartered by boroughs, j^gg^g Jords it never took place at all. The burghal court was a seignorial court, which assumed now the form of ' court leet' and now that of 'court baron'; and such it continued to be until the end. But even in some great and royal boroughs seignorial justice was a hardy plant. In Stamford, which was an old royal borough, though it had come to the hands of the ' Ipswich Domesday, p. 141: No land tenant in the said town shall do homage or fealty to his chief lord. ' Plaeit. Abbrev. 310 (London). CH. III. § 8.] The BorougL 631 Earl of Warenne, four prelates and five other lords claimed to have court of all their tenants; and this in the year 1275'. In London nearer the beginning of the century there were many sokes and it seems to have been regarded as quite usual that an action for land should be begun in a feudal court, and should only come before the civic busting after a default in justice had been made^. Even in Edward II.'s reign many lords have to answer the question by what warrant they claim franchises in London. In many cases they disclaim the franchises ; in others they lose them for disuse — one suspects that civic juries are not inclined to favour them — but in yet other cases they assert their rights successfully. The Bishop, Dean and Chapter of St Paul's have three sokes in Cornhill, Bishopsgate and Holborn where they exercise the right of infangthief, though the actual hanging is done outside the city at Finsbury and Stepney'. The Prior of Trinity Church as representing the estate of the old English Knightgild holds the Portsoken and is an alderman by tenure; even civic jurors admit that his men and tenants sue and are sued in his courts, save in pleas of land and pleas ordered by royal writ to be tried elsewhere*. There is feudalism in the gildhall itself. Eobert Fitz Walter still represents the lords of Baynard's castle, though the castle itself has been sold to the Archbishop of Canterbury. He must be summoned to every meeting of the common council ; when he enters the gildhall the mayor must rise to do him honour, and while he is there all the judgments that are to be delivered shall be delivered by his mouth. Such at all events is his opinion". On a few points of private law the borough custom would Customary swerve from the ordinary rules. Often the tenant of a burgage law. could give it by last will, at least if he had not inherited it, for some customs drew a distinction between inherited and pur- chased tenements. Then the customary rules of inheritance might differ from those of the common law. A custom which gives the whole tenement to the youngest son has gotten the name 'borough English' and has therefore been supposed to be peculiarly appropriate to the circumstances of townsfolk. Really however this name seems due to a single instance. At Nottingham in the days of the Conquest a new French 1 E. H. i. 354. 2 Munim. Gild. i. 64-5. = P. Q. W. 456. 4 p_ Q_ ■^. 472. •■' P. Q W. 472. Munim. Gild. ii. 149-151. 632 Jurisdiction and Qorrvmunal Affairs, [bk. ii. borough grew up beside the old English borough and the customs of the 'Burgus Franciscus' as to dower, inheritance and the like had to be distinguished from those of the ' Burgus Anglicus'.' Among the customs of the ' borough English' was the rule in question, and after the 'borough English' of Nottingham the lawyers baptized it. As a matter of fact there is no reason for supposing that it had a burghal origin. It is not very often found in the boroughs while it was common enough in rural manors. Nottingham supplies us also with a much rarer custom, namely (we must borrow a term from France), the retrait lignager, the right of the heir apparent (or perhaps of any kinsman) of one who sells his tenement to come forward within year and day after the sale and buy back the tenement at the price given for it^ On the continent of Europe such a right was very common ; a mitigation it was of old law which required the heir's consent to an alienation made by his ancestor. The English common law seems to have leapt over this stage of development, to have passed at once from the rules laid down by Glanvill, who in many cases requires the heir's consent, to the state of things described by Bracton in which such consent is never necessary. Now in a borough we should look for a greater and not for a less power of selling lands than prevailed elsewhere and it is not impossible that the custom of some boroughs fell behind the common law just because at an earlier time the custom had been in advance of the common law. The borough obtains from the king a charter saying that if any one holds a tenement in the town for year and day, the claims of every person to that tenement shall be barred unless he was in prison, under age or beyond the seas^. The main object of this is to preclude the claims of expectant heirs. This puts the custom in advance of the common law of Glanvill's day. But some boroughs stop here ; Nottingham at 1 Eecords of Nottingham, i. 124, 186. 2 Eeoords of Nottingham, i. 70, 100. >* Maitland, Possession for Tear and Day, Law Quarterly Review, v. 253. This privilege was granted to Bury by the Abbot ; the person protected must have ' legally acquired ' the tenement ; Registrum Saoristae, Camb. Univ. Libr. Ff. ii. 33. f. 64 b. See also Customs of Winchester, Archaeol. Journal, ix. 74 ; apparently when a citizen of Winchester wishes to make a conveyance of land he presents the charter to the aldermen ; thereupon ' the ban ' is cried ; then after three days the charter is sealed with the city's seal ; then after quiet possession for year and day the purchaser is safe. CH. III. § 8.j The Borough. 633 least stops here for a while; its custom falls behind the common law and develops a retrait lignager. At Northampton we find in later days, not only the retrait lignager, but also the retrait feodaV. Then, again, the custom -sometimes provided for a landlord, whose reat was in arrear for year and day, a readier mode of ejecting his tenant than the common law would have given him^. But we do not find very many peculiarities of this sort. In this context we may mention another privilege that was Freedom sometimes granted to a borough : — the serf who dwells in it for a year and a day, at all events if he has become a burgess or a member of the merchant gild, becomes free, or at least can not be claimed by his lord so long as he remains within the borough. In its origin this seems an assertion of royal right. The king treats his borough, the whole of his borough, as though it were one of his ancient manors. If a serf comes and dwells there, his lord must claim him at once or not at all, for the king will not tolerate that the lords should interfere with his lands. As regards a borough an express declaration of this principle is necessary, for, as we have seen above, the land within the walls of one of the greater towns was seldom an unbroken stretch of royal demesne land. Nevertheless 'the borough' as a whole is the king's and he announces that those who come there and form part of the burghal community, although they may not be holding their burgage tenements immediately of him, are to enjoy the same security that is con- ferred by the soil of the ancient demesne'. The first declarations of this right are pitched in a very royal key. Henry II. in his charter for Nottingham declares that ' if any one, whencesoever he be, shall dwell in the borough a year and a day in time of peace, no one afterwards except the king shall have any right in him*.' He does not say that the serf is to be free, but what remains in the king's hands for year and day becomes the king's. As the borough grows more independent of the king the rule begins to take the shape of a privilege conceded to ' Northamptonshire Notes and Queries, iv. 169. 2 As to the London ' gavelet ' see Muniment. Gildh. 1. 62 ; see also the Winchester custom, Arohaeol. Journal, ix. 76, and the Beading custom, Cunningham, Growth of English Industry, i. 543, and the Northampton custom, Northamptonshire Notes and Queries, iv. 255. 3 See above, p. 412. * Eecords of Nottingham, i. 1. from toll. 634 Jurisdiction and Communal Affairs, [bk. ii. the burgesses instead of being simply a royal prerogative. The burgesses no doubt are glad of the concession, it serves to keep their town free from the interference of foreigners, and someone thought fit to add to the Conqueror's laws a clause -stating in the widest terms that if a serf lives for year and day in a city, borough or walled town he shall become free'. Nevertheless it would be a great mistake to think that the townsfolk wished to obliterate the distinction between bond and free; on the contrary they were careful to prevent men of servile birth from becoming citizens"- Freedom (m) Mercantile Privileges. The borough is not merely a governmental and in a certain measure a self-governing district, it is possessor of mercantile privileges, and as will be remarked below, it is chiefly in this character that it becomes a person in the eye of the law. When a borough had obtained the right to farm itself, one of the most important sources of its revenue was toll. Of this we must speak hereafter when we discuss the firma burgi. Sometimes this fount of income was protected not merely by a rule of common law, which would have prevented even the king from setting up a new to the damage of an old market, but also by a royal ban which compelled the folk of the neighbourhood to do their buying and selling in the boroughs But those who took toll at home were anxious to be quit of toll elsewhere, and very possibly the burgesses regarded freedom from toll as the most essential of all their rights. Already in Domesday Book we read how the man who was domiciled in Dover and there paid the king's dues was quit of toll throughout all England*. Subsequent charters threw about such favours with a liberal hand; some- ' Leg. Will. Conq. in. o. 13 (Schiaid, p. 356.) ^ On this subject see Stubbs, Hoveden, vol. ii. p. xxxviii. It is true that we read in Glauvill and a few charters of the privilege as existing in certain boroughs before we hear of it as existing on the royal demesne lands ; but in general the peculiarities of the ancient demesne are regarded as very ancient ; they are supposed to represent the conquest settlement. In 1313 the would-be law or charter of the Conqueror was pleaded by persons who were living in Norwich : Placit. Abbrev. p. 316. In 1808 Simon of Paris was imprisoned as a villein ; he brought an action and the plea that he was a citizen and alderman of London was not received ; Y. B. 1 Edw. II. f. 4. At Norwich no one could become a citizen unless he was already a free man: Norwich Oustumal, cap. 36. This was true of Loudon also : Munim. Gildh. i. 33. See Gross, Gild Merchant, i. 30. ' See e.g. Eeoords of Nottingham, i. 1. *.D. B. i. 1. OH. III. § 8.] The Borough. 635 times the burgesses were bo be quit of toll throughout all England, sometimes they carried this immunity with them into all the king's lands beyond the sea. In our eyes, it may be, the best outcome of this privilege was that it provided an ever-recurring theme for inter-municipal litigation and aroused in the boroughs a consciousness of their own personality. (iv) The Firma Burgi. Often the borough farmed itself, The Firma or perhaps we had better say for the present that the burgesses "'^*' farmed the borough. They might hold their borough under a lease for years or during the lessor's pleasure ; they might hold it in fee farm, that is, under a perpetual lease. Impor- tant as this step towards independence might be, it was not taken by some very considerable towns until late in the day; it would seem, for example, that the citizens of Winchester did not obtain a perpetual lease or grant of their city until the reign of Edward III.', while on the other hand at a very much earlier date many a rural manor was being farmed by ' the men of the manor,' though hardly farmed in fee. Now in these cases the phrase commonly used in the charters is that the king has granted the burgus in farm to the burgesses^. What in this context is the hurgusl Now, unless we are mistaken, it is not a stretch of land, but an ' incorporeal thing,' a complex of rights, a group of sources of revenue. These sources would be chiefly three, (1) tolls, (2) the profits of courts, (3) such rents as theretofore had been payable to the grantor. It is, we say, not a stretch of land that is granted. Suppose the borough to be a royal borough, the burgesses by obtaining the firma bwrgi do not step into all the king's rights, they merely step into the rights of the sheriff or some other royal reeve who heretofore has been farming the borough. This seems clearly proved by the law of escheat ; the individual burgess still holds his tenement of the king, unless indeed he holds of some mesne lord ; he does not hold of the burgesses, and if there be an escheat the burgesses do not profit by it'. Indeed it may be much doubted whether the walls, ditches, streets and open spaces of the borough were held by the burgesses. They were still the king's walls, ditches and ' Firma Burgi, 18-20 ; Gross, Gild Merchant, i. 6. 2 The transaction is sometimes called a feoffment; e.g. E. H. i. 61 : King John enfeoffed the burgesses of Derby. s As to the escheat of tenements in London, see above, p. 630. 636 Jurisdiction and Communal Affairs, [bk. ii. streets, and he who encroached upon them committed a purpresture against the king'. Nor is it by any means certain that the king parted with the soil over which the burgesses exercised the right of pasture. So long as that right was not impaired, it mattered little to the burgesses whether the ownership of the soil was conceived to belong to the king or to the nascent municipal corporation. The situation is well shown by the minute description of Cambridge given on the Hundred Rolls. ' The burgesses of Cambridge hold the vill of Cambridge with all its appurtenances in fee farm of the king in chief, as in meadows, pastures, mills, waters and ponds, with all franchises and free customs belonging to the said vill.' But the burgesses taken collectively are not conceived as being the lord of the individual burgess or of his tenement. If he has to pay rent to them, or rather to their bailiffs, the phrase used with wearisome iteration is — not ' he holds of the borough,' nor ' he holds of the burgesses,' but — ' he pays to the bailiffs of Cam- bridge, who hold the said vill at fee farm of our lord the king, so many pence for haw-gavel, or so many for land-gavel towards their farm^' Bonenfant the Jew held an open place in the town of Cambridge, but he has lately been hanged for clipping coin and that place has escheated, not to the burgesses, but to the king*. No doubt, however, the charters which dispose of a 'borough' are to the eye of a modern lawyer somewhat loosely drawn ; they affect to dispose of meadows, pastures, waters. Very possibly the grant of the firma burgi carried with it in some cases a right to let certain parcels of land theretofore let by the sheriff, and a perpetual power of leasing when coupled with a right to enjoy the rent is hardly discernible from a right of ownership. Thus the jurors of Lincoln tell us of an island which thirty years ago the bailiffs of their town used to let, applying the rent to the discharge of the farm of the city*. ' See the account of Linooln, E. H. i. 397-8. Observe however that one John Amesas had obtained, by means of an improper use of the common seal (so say the citizens), possession of an open place which used to be ' the common of the whole vill' where carts of turf and fagots were loaded and unloaded. E. H. i. 533 : the burgesses of Grimsby hold their ' borough ' in chief of the king, but W. G. has made a purpresture iu the market [place] of the king by enlarging his shop. See also the account of Canterbury ; E. H. i. 203. 2 E. H. ii. 356 £f. ' E. H. ii. 392. * E. H. i. 397 : ' insulam quam ballivi Lincoluiae solebant dimittere ad firmam ad auxilium firmae civitatis.' CH. III. § 8. J The Borough. 637 In such a case we may be inclined to say that the holders of the farm of the city are the holders of the island, though this may not .be technically correct. The general theory of the law seems to be that in becoming a farmer the burgesses become rather a bailiff than a tenant, though a bailiff who, like many other medieval bailiffs, has to account each year for a fixed sum and may make a profit or a loss out of his office. In general the distinction is not a very important one, for each individual tenant in burgage is a freeholder with heritable rights, and to give to the community of burgesses a perpetual right to receive his rent is much the same in effect as to make that community his landlord, or, in other words, to make it a mesne lord standing between him and the king. But when an escheat happens then the difference is at once apparent; the dead burgess has been holding of the king not of the community. In short when a ' borough' is granted to the burgesses, this 'borough' belongs to the category of 'things incorporeal,' a category which comprises ' counties' and ' hundreds.' When a man is appointed sheriff the king commits to him ' our county of Z';,and so the king will grant to a baron or prelate 'the hundred of Y.' The sheriff will not own the soil of the county; the lord of the hundred need not be tenant or lord of the soil of the hundred ; in each case what is given is not a tract of land but a complex of royal rights and powers to be exercised within the limits of a certain tract'. This question is of some importance ; we have heard of its being raised in these last times between a municipal corporation and a telephone company — Did the firma hurgi comprise any ownership, any tenancy of the soil ? Therefore we will add one further argument. The citizens of London farmed not only the city of London but also the county of Middlesex. Now, not only does no one suppose that the civic corporation has a place in the scale of tenure between every Middlesex freeholder and the king, but no one supposes that the civic corporation became the tenant of all the roads and open spaces within the boundary of the shire =". So again the citizens of York farmed the ' By way of contrast see John's charter for Dublin, Eot. Cart. 79, which distinctly makes over to the citizens all the open spaces to do what they like with. 2 The doctrine which gives the soil of high-ways to the owners of the adjoining lands is not, we are persuaded, of very ancient origin; but this matter can not be discussed here. 638 Jurisdiction and Communal Affairs, [bk. it. wapentake of Ainsty, and, if we will believe the men of that wapentake, very ill they treated it. They sub-let it at an advanced rent to a bailiff who used his subjects so vilely that they talked of selling their tenements and leaving the country \ But, as we understand the matter, the citizens of York held the wapentake in the same sense that the archbishop of York might have held it without being owner, lord or tenant of a single rood of land. As already said, however, the distinction might in some cases be a very fine one ; for instance, a complete control over a market-place may look very much like an ownership of the soil, so long as no one seeks to win the coal which lies underneath it, or to do some other act which we can scarcely conceive as being done in the thirteenth century. Should a question arise about these matters in our own day, great weight would very properly be ascribed to acts of user" and (to say nothing of modern statutes) many boroughs now have far ampler charters than those granted in the thirteenth century. But as to the historical question, we can not believe that the grant which made the burgesses firmarii of the hurgus, made them domini or tenentes of the land that lay within the hurgus. On the other hand it is curious to notice that the burgesses held that the grant of ' the borough ' carried with it rights of ecclesiastical patronage. The men of Cambridge as farmers of their town claimed to present a master of St John's Hospital; we hear similar claims at Norwich and Northampton'. Property This leads to the remark that the borough of our period borOTgh- ^^^ ^®^^ little property, if under the term property we include Borough merely the ownership of lands and goods. For the moment we assume that there already is a municipal corporation ; this corporation we repeat is the owner of but few lands and but few goods. The grant of the fee farm of the borough, or (to use the language of the time) the grant of the borough to be held in fee farm, does not, at least as a general rule, make the community a landholder, and as yet it but seldom purchased lands or received lands by gift. For a very long time we hear little of the lands that it holds while we are constantly hearing a great deal of its franchises. We have seen how by the 1 E. H. i. 124-6. 2 See Beckett v. Corporation of Leeds, L. R. 7 Ch. 421. 3 B. H. i. 55, 530 ; ii. 2. CH. III. § 8. J The Borough. 639 middle of the thirteenth century the outcry against gifts in mortmain was growing loud', how a statute of 1279 forbad the men of religion to acquire land. Now from the feudal point of view a municipal corporation would be to the full as undesirable a tenant as any abbey could be : — it would never die, never marry, never commit felony. But it took men more than a century to perceive this ; a statute of Richard II. forbids the boroughs to acquire land and proclaims the discovery that these bodies ' are as perpetual as men of religion ^' It seems a safe inference that only in the course of the fourteenth century was the attention of the landlords called to the fact that lands were passing into the hands of lay corporations, and this inference is borne out by such documents as the Hundred Rolls and the Placita de Quo Warranto, in which we should assuredly read of the boroughs as landholders, if landholders they were. It is a rare exception when we hear how Henry Waleys, mayor of London, gave a house to the city for the main- tenance of London bridge ; and, when we read how Edward I. granted to the same city cei-tain vacant places within the walls in order that they might be built on and that the rents thereof might be applied to the support of the bridge, then we see both that the city was capable of acquiring lands and that the ' fee farm of the city ' implied no ownership in the soil of the open spaces'. Similar grants of land to citizens and burgesses may have been made at a much earlier time. It would seem that even in the twelfth century ' the citizens of Oxford of the commune of the city and of the merchant gild ' gave an island called Middleye to William Chene the alderman of their gild, who gave it to the Abbey of Oseney^ and in 1254 in Bracton's presence the Abbot of Reading granted to the burgesses of that town that they might have their gildhall and the twelve messuages belonging to it together with the meadow called Portmanbrook*. In Henry II.'s day the men of Winchcombe conveyed their gildhall to the abbot in exchange for a piece of land^ Still on the evidence that is before us it would seem that such cases were rare. In saying this we do not intend to deny that there were some few instances in which the borough 1 See above, p. 315. ^ Stat. 15 Eic. II. c. 5. " Munimenta Gildhallae, ii. 95, 274. * Gross, Gild Merchant, ii. 192. " Gross, Gild Merchant, ii. 203. " Winchcombe Landboo, i. 231. 640 Jurisdiction and Convmunal Affairs, [bk. ii. corporation or the men of the borough by some sort of com- munal title, (we must needs use a very vague phrase,) had held land from an extremely remote time. This may have been so at Malmesbury; but we are fully persuaded that such cases were rare'. Not only is the evidence of them small in quantity but in quality it is very ambiguous. When, for example, we are told that the burgesses of Scarborough hold the borough of Scarborough in fee farm of the king at a rent of £66 and the manor of Walsgrave with QQ acres in the fields of Scar- borough at a rent of £25 under a charter of Henry III., we must doubt whether the rights of the community of burgesses and the rights of individual burgesses are not implicated in this statement past hope of disentanglement. What rights, if any, . have the burgesses as a community in those 66 acres ? Probably, we think, none but the right to receive fixed rents from individual burgesses who are freehold tenants^. The burgesses of Grimsby by the gift of King John ' hold the vill of Grimsby ' and to this pertain certain demesne lands of the king in Swallow some eight miles away from the town. We are told what this means. It means that from Swallow the burgesses collect every year £2. is. 8d, eight cocks and hens and a hundred and twenty eggs for nineteen bovates of land in Swallow. They now receive the rents which in the past were paid to the king'. Chattels If the community owned chattels, these must have been few borough. ^'^^ °^ '^° great value. Perhaps already some sword, some staff, some chain of office was handed on from mayor to mayor and there may have been drinking horns and casks of wine and beer for which it would have been hard to find an owner in the world of natural persons. There was a muniment chest and there was a common seal. But it is not for the sake of such trifles as these that law will undergo the pain of giving birth to the juristic person. Sometimes, again, there would be a box with money in it; but had a thief stolen box or money we suspect that he would have been charged with stealing the proper goods and chattels of some natural man, the mayor or the chamberlain of the borough. That those who collect rents and taxes should misappropriate the monies that they receive is, if we believe the jurors, a very common event ; but no one, ' Maitland, Survival of Archaic Communities, Law Quart. Eev. ix. 36. 2 E. H. i. 131. 3 B. H. i. 291. CH. III. § 8. J The Borough. 641 so far as we know, ever speaks in this context of theft or felony. (v) Election of Officers and Constitution of the Borough. Elective Already Henry I. had promised the Londoners that they might elect a sheriff and a justiciar from among themselves' But London was in advance of other towns. Gradually some of the greater boroughs obtain the right of electing their reeve or their bailiffs, who however do not enter on their offices until they have been presented to and approved by the king's justiciar. Sometimes this step is taken before the burgesses have obtained the right of farming the borough in fee. In such a case the bailiffs, though elected by the townsfolk, are still much rather the officers of the king than the oflScers of the community ; they and only they are the king's farmers, and it is for them, if they can, to make a profit of their office. They begin to look more like the officers of the burgesses when the burgesses themselves have become answerable for the firma. Some towns stop here for a long time ; many following the example of London buy the right to have an elected mayor. No doubt this step also was an important one. No doubt the Londoners, influenced by what was happening abroad, set great store by the election of a maior who should be the head of their communa ; ' come what might they would have no king but the mayor".' Even if we take no account of such aspirations towards independence as were never fulfilled, it still was of great moment that the town should have some one man as its chief; the anthropomorphic picture of a body corporate required that there should be a 'head'.' Still it seems clear that a large and wealthy city might get on well enough without a mayor; until 1403 the citizens of Norwich were content with their four bailiffs*. Beyond conceding the liberty to elect bailiffs or mayor and The T 1 11 ii J. ii T. •I'iT n governing the liberty to elect coroners ' who shall see that the baililis ot body, the borough deal justly and lawfully with rich and poor,' the charters of this age seldom define any constitution for the borough. They make no class of councillors, aldermen, chief burgesses ; they do not say how or by whom the dooms of the burghal court shall be rendered. As we might expect the 1 Schmid, Gesetze, p. 434. See Bound, Geofirey de Mandeville, p. 347. 2 Stubbs, Const. Hist. i..674. '' See above, p. 474. * Hudson, Archaeological Journal, vol. xlvi. p. 293. P. M. 41 642 Jurisdiction and Communal Affairs, [bk. it. active organ of the borough is rather a court than a council. The frankpledge system prevails in the boroughs. A view of frankpledge is sometimes held for the whole borough (a ' mickle- torn' it is called in some towns), whereat the mayor or the bailiffs presides or else the borough is divided into wards or into ' leets ' each of which has its separate court". On the whole, the business of viewing the tithings and presenting offences seems to have been conducted within borough walls much as it was conducted in the open country. Naturally however the system of tithings sometimes took a territorial form, each small district of the town or each street had its tithingman or its two tithingmen'. Then there was a civil court holding frequent sessions. Often it sat once a week and when ' foreigners' were concerned it would sit from day to day. Often it had no other name than 'the court of the borough {curia hurgi) ' ; sometimes it was the ' busting,' the ' burware- mote,' ' portmote ' or ' portmanmote.' Over it the mayor or the bailiffs presided, and perhaps in some places any burgess was capable of sitting in it as a doomsman. But the amount of business that it had to do would inevitably deprive it sooner or later of its popular character; the miscellaneous mass of burgesses would not easily be brought to do weekly suit of court. Already in Henry I.'s day there was in London a 'busting' distinct from the 'folkmoot.' Already before the Conquest there were twelve lawmen, twelve indices, in some of the boroughs. In 1200 John granted to the men of Ipswich a liberal charter. In pursuance of its terms they forthwith elected two bailiffs and four coroners. But they did not stop there. They decided that there should be in the borough twelve chief portmen ' as there are in the other free boroughs of England,' who should have full power to govern and maintain the borough and render the judgments of the town. Thereupon they chose twelve men, — among them were the four coroners, two of whom were also the two bailiffs — and these twelve were sworn to guard and govern the borough, to maintain its liberties 1 See the extracts from the Mickletorn rolls in Kecords of Nottingham, vol. i. ' Norwich was divided into four leets. See Leet Jurisdiction in Norwich (Selden Soc). ■* See Nottingham Eecords, e.g. vol. i. p. 315, and compare Hudson's Introduction to Leet Jurisdiction in Norwich. CH. III. § 8.] The Borough. 643 and to render the judgments of its courts. Thereupon all the men of the town swore to be obedient to them and to every of them, save as against the king and the king's powers Further we discover at a little later time that the twelve chief portmen hold their offices for life, though they may be removed for misbehaviour by the judgment of their fellows. Vacancies again are filled, not by popular election, but by co-optation''. Now certainly it would be rash to draw any wide inferences from the few clear cases that come before us; nevertheless it would seem that very commonly some select body was formed some body of twelve or twenty-four chief citizens, chief burgesses, chief portmen ; formed by definite act as at Ipswich or formed by a practice of summoning to the court only ' the more discreet and more legal men.' This body at first is rather a judicial body than a governing body, for the powers entrusted to the burgesses by their charter are much rather justiciary than governmental powers. But municipal life grows intenser and more complex ; the court has to ordain and to tax as well as to adjudge, and it is apt to become a council, the governing body of the borough. An assembly of all the burgesses, a ' folkmoot,' may have taken place at stated intervals', chiefly, it may be, for formal purposes, such as that of hearing statutes or royal proclamations, or in London that of sanctioning the dread words of outlawry*, or again for elective purposes, for choosing mayor, bailiffs and chief burgesses or for sending burgesses to parliament. In London the folk-moot, held in St Paul's Church- yard, was at times very active ; but the division of power between it and the busting was not accurately defined, and the king seems to have taken good care that there should be no accurate definition ; he could play off the one against the other. The last hours of Henry IIL were troubled by a bitter dispute between the aldermanic and the democratic factions as to the right to elect a mayor; but such quarrels seem to have generally ended in the king having his way. From St Paul's Churchyard or from the Gildhall it was no long way to West- minster, and one or the other party was off thither so soim as 1 Gross, Gild Merchant, ii. 115. " Ipswieh Domesday, p. 167. ' In London thrice a year ; Munim. Gildh. i. 118. ^ The offender was exacted in the hustings but actually outlawed in the folkmoot : Munim. Gildh. i. 86. 41—2 644 Jurisdiction and Communal Affairs, [bk. ii. Powers of self- govern- ment. it thought itself oppressed'. But Ipswich rather than London should serve as a type of the English boroughs, and already in the thirteenth century when we meet with by-laws purporting to have been framed by ' the common consent of the burgesses ' of some great town, or with grants and agreements to which ' the burgesses ' are supposed to be parties, we may suspect that there has been no plebiscitum, that the borough-court, the busting, the portmanmoot, has acted on behalf of the whole community ^ (vi) By-laws and Self-government. The charters do not expressly grant any power of legislation ; but no doubt such power in very varying degrees was constantly exercised : — in very varying degrees, for however little distinction the law might make in this respect between borough and borough, there must have been a marked difference in fact between the city of London and some small market-town which, had just attained to burghal rank. Not that we can at once ascribe greater powers to the wealthiest and most nobly chartered towns. On the contrary, in the petty borough whose governing court was still the court of its lord, the lord with the assent of his court would still be able to make ordinances almost as easily as, with the assent of his court, he could make ordinances for his rural manors, and the validity of such ordinances would often pass unquestioned. But as an enfranchised town grew in trade, in wealth and in population, its folk would be tempted or compelled to enter on the regulation of all manner of affairs which had no existence in less busy, less rich, less crowded places. Its 'customs' had been guaranteed to it, and the function of declaring and defining custom could not always be sharply marked off from that of imposing new rules. In London definite civic legislation begins at an early time. Iti 1189 Fitz-Alwyne's Assize was issued. It has been well called the earliest English ' Building Act"; it contains some stringent provisions as to the houses that men may erect. A somewhat similar ordinance was issued in 1212 after a great fire, and it did not scruple to fix the rate of wages for masons, carpenters, tilers and the like' Thenceforward elaborate and ambitious ' Eiley, Chronicles of Old London, pp. 34, 37, 45, 48, 59, 153 ff. ^ In addition to well-known books see Colby, Growth of Oligarchy in English Towns, Engl. Hist. Eev. v. 663. 3 Muuim. Gildh. i. pp. xxx. 319. * Ibid. ii. 86. OH. III. § 8.] The Borough. 645 attempts were made to regulate the price of commodities and the business of the various crafts. Now it is the poulterers who require attention, and now a code must be issued for the saddlers, the cappers or the cordwainers ; and then again exceptional privileges are conceded to this or that set of foreign merchants ; such a grant, for example, is made to the men of Amiens, Corbie and Nesle, for which they are to pay an annual sum of fifty marks towards the farm of the city\ The mayor and aldermen of London seem to conceive themselves as endowed with almost unlimited legislative power over the whole province of trade and handicraft. And no doubt their ordinances were in many cases well enough obeyed. The individual citizen, the individual ' foreigner,' dared not quarrel with them. For all this however many doubts may occur to us as to the Limits to limits set by common law to their powers. Over against their powers, wide claims we must set the wide claims of the king. Now and again some knot of traders which thought itself oppressed would be rich enough to stir the king to action, and when the king takes action even the city of London is apt to look powerless. In Edward II.'s day a prolonged dispute broke out between the civic authorities and the body of fishmongers on the one hand and certain fishmongers who did business at the Fish Wharf on the other hand". Ordinances had been made prohibiting these last from selling fish by retail at the wharf The king was induced to dispute the validity of these ordi- nances. Much was said about their good and bad effects; but the king's counsel took high ground : — ' The city of London is the city of our lord the king, and of his demesne, and it is not lawful for the said mayor and commonalty, nor for any other, to make any ordinances in the said city without con- sulting the king'.' So again at an earlier time Walter Hervey, mayor of London, had issued ordinances regulating the affairs of various crafts and affecting to confer on the craftsmen power to make yet other rules for their trade ; but the validity of these ordinances was disputed, not only on the ground that the aldermen had not been consulted, but also because the regulations favoured unduly the richer men of the crafts*. Durinsr the period now before us the common law does not Enforce- o ^ _ ^ _ ment of come to close quarters with municipal by-laws ; it is rarely, if by-laws. 1 Munim. Gild. ii. 64. ' Ibid. ii. 385-407. » Ibid. ii. 405. ' Biley, Chronicles of Old London, p. 171. 646 Jurisdiction and Communal Affairs, [bk. ii. ever, called upon to uphold them, for they are enforced in the municipal courts by those who made them '; it is rarely called upon to condemn them, for he must be both a bold and a rich citizen who will call in the king against the city. And so we obtain no jurisprudence of by-laws, no established tests for their validity. The one thing that we can say with some certainty is that in theory no one in England can claim to legislate unless that power has been given him by the king — to say nothing of parliament. Those who claim to make by-laws must show that such power has been given to them expressly or impliedly by some royal charter, or else they must show (and this they will hardly prove to the satisfaction of the king's justices) that they have been exercising it from time immemorial. On the whole, we may doubt whether in the majority of English towns much was done by way of legislation that might not fairly be represented as being no more than a necessary definition and development of ancient customs. No decent person would consider himself aggrieved if a sharper edge was given to old rules directed against the wickedness of the ' forestall er' who enhanced the price of victuals^ Bates and (yii) Self -taxing powers. Powers of taxation are not expressly conceded by the charters of this age, and they must have been confined within narrow limits. If the burgesses wished to repair their walls, their bridges, their- streets, they had to apply to the king for a grant of murage, pontage or pavage; and such grants were not to be had as matters of coursed In Edward I.'s day the petition came before the 1 Munim. Gildh. ii. 386. The fishmongers of the Pish Wharf say that they can get no redress in the city courts for their adversaries ' sount mestres et menours de la dite cit6.' 2 See Select Pleas of the Crown, pi. 137 for an early instance. In 1221 the men of Worcester confess to having ' provided ' that no one shall sell victuals before the hour of prime. At Norwich there might be no buying or selling until the bell had rung for the mass of Our Lady : Norwich Custumal, o. 37. The Ipswich Domesday contains a good many rules which are said to be ordained by the commonalty, though as a whole it was regarded as a statement of ancient customs. It was to contain (p. 18) 'the laws and usages of the town beforetime used so near as the same could be set forth (a plus pres que horn Us peotpar ion avisement estimer).' > E. H. i. 108 : the citizens of Scarborough have taken murage for two years beyond the time for which it was granted to them. In 1325 a request for murage preferred by the same burgesses is refused by the king ; Bot. Pari, i, 423. CH. III. § 8.] The Borough. 647 royal council in parliament, and the 'local rate,' we may say, was frequently a 'parliamentary tax'; but as even at this time the king had not lost the right to tallage his boroughs, he could permit them to tallage themselves. The royal nature of the power to tax is well illustrated by the loud complaints which come to our ears from almost every ward in the city of London : — The great men of the city have purchased charters exempting them from tallages and thus the whole weight of these tallages is thrown Upon the .smaller folk. ' Not just once, twice, thrice or four times have the mayor and aldermen set tallages upon us without the special command of the king or the assent and consent of the whole community ; they have spared the rich and distrained the poor, to the disherison of the king and the destruction of his city'.' A certain power in ' the whole community' to tallage its members, these London citizens are willing to admit, but how far they would have allowed a majority to tax a dissentient minority is very doubtful. The heavy imposts to which they had recently been compelled to submit were occasioned by the enormous fines to which the city had been subjected owing to the share which its citizens had taken in the Barons' War. Speaking generally we may say that tallages, fines and amercements imposed upon the borough from without, were (together with the murages, pontages and pavages which, if not imposed from without, were at least licensed from above) the main causes for municipnl taxes. The borough community had few other expenses to meet, it was not an 'improving corporation' with hosts of paid servants^ The individual burghers had to serve as officers, as constables, ale-conners and the like, or find and pay fit sub- stitutes, while small fees taken from suitors in the borough court, or taken from the youths admitted into frankpledge, would serve as a remuneration for the town clerk. On the whole, the burgher's duty of paying 'scot and lot' with his fellows came home to him chiefly, if not solely, as a duty of contributing towards sums exacted from the borough by a ' not-itself,' and the question as to the legality of rates made 1 B. H. i. 403 ft. especially 411. There is a great deal about this matter in the Liber de Antiquis Legibus. See also the complaint from Northampton, E. H. u. 2. "^ However in 1237 the Londoners had already been engaged in making a conduit to bring the Tyburn water to the city ; Munimenta Gildhallae, vol. ii. p. 66. 648 Jurisdiction and Communal Affairs, [bk. ii. ToUs. The GUd Merchant. The formation of a gild. for other purposes was very seldom raised'. Had it been raised, the recalcitrant burgher would have found no very favourable tribunal in the borough court, while an appeal to the king's court was only open to one who could afford to begin a small civil war against his neighbours. But even the great city of London found it well to obtain from Edward II. an express power of impo.sing tallages for its own use", y A large part of the borough's revenue was derived from tolls, if we use that term in its largest sense to include 'passage, pontage, lastage, stallage, bothage, ewage, tronage, scavage' and the like. Naturally a borough community intrusted with the farm of tolls was tempted to impose a stringent and protective tariff — its ideal of a perfectly 'free' trade was an unlimited power to tax other people. Nevertheless we may doubt whether it had a right to create new tolls. The charge of levying new tolls is an extremely common one ; and those against whom it is brought seem always concerned to deny that there has been any innovation. The land, it must be remembered, was full of private lords who were toll-takers, and there hardly could be one rule for them and another for the boroughs. (viii) The Gild Merchant. In a large number of towns one of the privileges that has been granted to the burgesses and their heirs is that of having their gild merchant. If we attempt to expand the brief phrase used in the charter we seem brought to some such result as the following :^The king gives to the burgesses a right to form or retain an association for the purpose of employing to the best advantage those mercantile immunities which by other words of his charter he has conferred upon them. They are to be toll free; they may organize themselves for the purpose of maintaining this freedom. A detailed and instructive story comes to us fi-om Ipswich. In 1200 King John granted a charter to the burgesses; they were to hold the borough in fee farm ; they were to be quit of toll and all similar dues throughout the king's lands; they were not to be impleaded outside their town ; they were to have their gild merchant and their hanse ; they were to elect 1 See the passages descriptive of soot and lot in Gross, Gild Merchant, i. 53-59. 2 Munim. Gildh. vol. ii. p. 273. CH. III. § 8.] The Borough. 649 two fit men to keep the reeveship of the borough ; they were to elect four coroners. Thereupon the whole community met in the churchyard and elected two hailiffs and four coroners, and it further ordained, as we have said before, that there should be twelve chief portmen who should guard and govern their borough and give its judgments. Then on a later day the chief portmen were elected and sworn. Then the bailiffs^ coroners and chief portmen held a meeting and resolved, among other things, that an alderman of the gild merchant should be elected by the community and that four men should be asso- ciated with him and that they should swear to maintain the said gild and all that appertained to it. Then the whole community met again and elected an alderman and four associates, who swore faithfully to govern the gild merchant in the borough of Ipswich and faithfully to deal with all the brethren of the gild. Then the alderman and his four associates in the presence of the people proclaimed that all who were of the liberty of the town should come before them and put themselves in the gild and give their hanse to the gild. Then the bailiffs, coroners, portmen and the whole community took counsel how the gild might best be maintained, and they decreed that the alderman and his successors should have a monopoly of marble, gravestones, pavingstones and the like, and that of the proceeds of this monopoly he should render account to the bailiffs and coroners^ Thus having got their charter the burgesses of Ipswich The gUd proceed to form two different organizations ; there is the govern- governmental and justiciary organization with its bailiffs, ^g" ° coroners, twelve chief portmen ; there is the gild organization bo^igii- with its alderman and his four associates. Certainly the two are closely connected. The gild is to be no mere voluntary association or private club. Every burgess is to place himself in the gild and pay his hanse, his entrance fee, to the gild, otherwise, as we gather, he will lose some at least of the advantages, notably the mercantile advantages, that the words of the charter give to the burgesses of Ipswich and their heirs. No doubt it would be imprudent were we to base any large generalities upon a few cases. Not all the charters of even date are exactly like the Ipswich charter. Thus in the same 1 Gross, Gild Mejchant, ii. 115-123. 650 Jurisdiction and Communal Affairs, [bk. it. year the same king granted a charter to the men of Gloucester. In this the privilege of not being impleaded without the walls and the privilege of being free of toll were expressly confined to ' the burgesses of Gloucester who are of the merchant gild'.' In one place the merchant gild may have been ^of more, in another of less importance, in oiie place it may have become in practice, though hardly in theory, the governing body of the borough, while in another place there was no such gild at all. In London itself traces of a merchant gild are, to say the least, very faint', while Norwich stands out as an example of the populous and flourishing cities which to all seeming never had a merchant gild'. The mercantile privi- leges granted to the burgesses could be maintained and enforced without any such organization, while with the public justice and police of the borough the gild as a general rule had nothing to do. In boroughs which had a gild merchant the burgess was not necessarily a gildsman, the gildsman was not necessarily a burgess. Objects of The main object that the gild merchant has in view is the thegUd. maintenance of the mercantile privileges that have been granted by charter. This is an important and a difficult matter. A few merchants of the town go to some distant fair or market ; toll is taken from them ; the lord of the fair, the bailiffs of the rival city to which they have gone, scoff at their charters, or without beiag guilty of any insult to the king's majesty, they temperately and reasonably set charter against charter and seisin against seisin. In such a case a solitary trader far from home is very helpless, he needs all the help that his fellows can give him. And they are deeply interested in his cause, for once let it be established that the burgesses of X are in seisin of taking toll from the burgesses of Y, then only by costly litigation, if at all, will the burgesses of Y recover seisin of their immunity. If the privilege is to be preserved intact, the individual merchant must be backed by a community of merchants which vnW take immediate action, which will complain to the king and support its complaint 1 Eot. Cart. 56. ^ Stubbs, Const. Hist. iii. 564. ' Gross, Gild Merchant, i. 22 ; Hudson, Constitution of Norwich, Archaeol. Journ. vol. xlvi. p. 324. See also Mr Stevenson's remark in Eecords of Nottingham, i. 188. The Ipswich Domesday seems to show that in that town the gild had nothing to do with governmental affairs. CH. III. § 8.] The Borough. 651 with a handsome gift, or which will forthwith make reprisals against the aggressors. To make reprisals they are encouraged by their charters. It is thus for example that the king speaks in his charter to the men of Gloucester — and similar clauses are not uncommon — 'And if any one in our whole land takes toll from the men of Gloucester of the gild merchant, and shall refuse justice, the sheriff of Gloucestershire or the reeve of Gloucester shall for this take a nam at Gloucester ^' If a gildein of Gloucester be subjected to toll in another town, the men of that other town had better not bring their wares to Gloucester. The merchants of the borough must be organized in order that this inter-municipal warfare may be conducted vigorously and prudently. Both vigour and prudence are needful ; all those who are not exempt from toll should be forced to pay it, while it is perilous to touch those who are exempt. In order that their action may be both prompt and deliberate the merchants must be organized, must constantly meet, must have executive officers and a common purse. Still these mercantile privileges are not of equal importance The gild to all the burgesses. Many of them are not traders ; but few burgesses of them will carry goods to distant markets, though those few are likely to be the richest and most powerful men of the town. Thus the gild organization may remain quite distinct from the governmental organization ; men may be burgesses who are not gildsmen. On the other hand it would certainly seem that rightly or wrongly the gildsmen take upon them- selves to receive as brethren men who are not burgesses, men who do not live in, who do not hold property in, the town, but who desire to share the immunities which the traders of the town enjoy*. Thus though according to the terms of the charters 'the gild merchant' is a liberty, a franchise, conceded to the burgesses, the gild comes to be a body of persons which does not include all the burgesses and does not exclude all who are not burgesses. Further, at least in some cases, the gild merchant evolves The gild out of itself a court of justice which exists beside the law court of the borough. This can hardly be prevented; the craft gilds of London evolve courts of justice, the French and 1 Eot. Cart. 57. "^ See the complaint against the community of Lynn ; E. H. i. 461 ; also the complaint against the men of Bedford ; P. Q. W. 18. 652 Jurisdiction and Communal Affairs, [bk. ii. German merchants in London evolve courts of justice, the learned universities evolve courts of justice ; there can hardly exist a body of men permanently united by any common interest that will not make for itself a court of justice if it be left for a few years to its own devices. The gild-brethren at their 'morning-speeches' do not merely take counsel for the maintenance of their privileges and the regulation of their trade, but they assume to do justice. In the first place they decide questions of inheritance and succession. A person's ' gilda,' that is, his right as a member of the gild, is treated as an object of ownership, an incorporeal thing. With the consent of the court a man may give it or sell it. If he dies possessed of it, then it will descend to his heir. And so at the morning- speech one person will come and demand against another the 'gild' of a dead ancestor 'as his right and inheritance,' using the very form of words by which he would have demanded -ancestral lands in a proprietary action. Such disputes, such actions we must call them, the gildeins hear and determine at their morning-speeches. But besides this they entertain actions of debt and covenant and trespass, and hardly dare we call them mere courts of arbitration, for they can enforce their own decrees ; if it comes to extremities the contumacious brother can be forejudged of his liberties and expelled from the gild ; we may greatly doubt whether he will find redress in any other court'. The Such in brief were the main franchises that the boroughs as a enjoyed, and these franchises, some or all of them, made the hoWer!^* borough to be a borough. This gave the king a tight hold upon the townsfolk. The group of burgesses was a franchise-holder in a land full of franchise-holders, and had to submit to the rules which governed the other possessors of royal rights. It might lose its privileges by abuse or non-use ; it might lose them by not claiming them before the justices in eyre, though in this case a very moderate fine would procure their restoration. Four times at least within eleven years did Henry III. seize the city of London into his hands, once ' for receiving Walter 1 See in Gross, Gild Merchant, vol. ii. under Andover, Guildford, Leicester, Totnes. After the researches of Gross and Hegel (Stadte und Gilden) it seems impossible to maintain any longer that the gild is the germ of the borough organization, though in course of time and in some towns the merchant gild becomes the governing body of the borough. CH. III. § 8.J The Borough. 653 Buriler without warrant for so doing/ once because of a false judgment in the hustings, once because the citizens prevented the mayor and aldermen from discussing certain matters with the king's justices, and once because the assize of bread and ale was not kept\ No doubt Henry was tyrannical and greedy; we are not defending him ; but these seizures show how weak a thing was the most powerful of all the English cities. Then Edward I. kept London for many years without a mayor and during this time he legislated for it in right royal fashion : — ' le Roy voet,' such is the formula by which by-laws are made^ And the king's inquests searched out the secrets of the borough ; he was not to be put off with the story told by the rulers of the community. If he desired to know what had passed at Lincoln he heard one jury of the great, another of the ' secondary,' a third of the ' lesser' folk'. We may now recur to the question whence we set out — Definition Could a borough be defined ? We much doubt it. Of course borough, as to many places no one would hesitate. London, Canterbury, Winchester, Norwich, York were cities; Nottingham, Derby, Northampton, Bristol were boroughs beyond all question. But how to fix the inferior limit? What was the smallest degree of privilege, of exceptionality, which would make a township more than a township, which would make it a borough ? Burgage tenure we can not adopt as the test, for we find it in places which had no claim to be regarded as boroughs^ Nor can we find the test in the fee farm of the borough ; the citizens of Winchester were not yet holding their city in fee^ Nor again will it serve to say that the borough is a township exempt from the jurisdiction of the hundred court ; many a mere rural township was quite as extra-hundredal as was the normal borough, indeed it might well be more exempt from the interference of the county officers than was many a small borough, for its lord (let us say the abbot of West- minster) had ' the return of writs ' in all his manors. Nor ' Eiley, Chronicles, pp. 11, 15, 18, 22. 2 Munim. Gildh,. i. 251 ff. ; see especially pp. 280-298. 3 B. H. i. 309-15-22. 1 Thus the abbot of Bee had burgage tenants at Atherstone in Warwick- shire : Select Pleas in Manorial Courts, i. 40-1. So the abbot ot Malmesbury had burgage tenants at Pilton in Devonshire : see below, p. 657. ° See above, p. 635. 654 Jurisdiction and Communal Affairs, [bk. ii. again can the test afforded by the practice of the eyres have been applied except in a 6he-sided way. Probably a place which had never sent twelve, instead of four, men to meet the justices would have had to show some recent grant of new liberties before it could pretend to be more than a township ; but on the other hand there seem to have been in some counties many places which sent twelve men to the eyre and which yet were not called boroughs or summoned to send burgesses to parliament'. And when the parliamentary test became applicable the line that was drawn was a most irregular one. It has been calculated that under the first two Edwards 166 boroughs were summoned once or more often; that on an average under Edward I. no more than 75, under Edward II. no more than 60 boroughs were actually represented ^ At any rate there is no doubt that the number represented fell off rapidly. That the sheriffs had an immense power in this matter is certain. In 1320 the sheriff of Bedford and Buckingham said that Bedford was the one borough in his bailiwick, though in 1316 five others had been summoned, namely, Amersham, Wendover, Aylesbury, Wycombe and Marlow'. The truth seems to be that the summons to parlia- ment engendered a force which diminished the number of the would-be boroughs. Theretofore it had been well to be a borough ; the townsfolk when they went before the justices in eyre had enjoyed the privilege of ' swearing by themselves,' of not being mixed up with 'foreigners'; but now they were called on to send to parliament representatives whom they would have to pay : — at such a price they would no longer be burgesses. Another force was making in the same direction ; abbots and other far-sighted lords were beginning to discover that it would not do to have burgesses. Long ago the men of Bury St Edmund's had been freed from all servile works ; the vill had received ' nomen et libertatem burgi' from the abbot ; a portmanraoot was held in it ; Abbot Sampson had chartered ' In Edward III.'s reign the men of Bakewell in Derbyshire suooessfully prove their right to appear by twelve men ; P. Q. W. 138. The eyre and hundred rolls show a good many ' manors,' especially ancient demesne manors, appearing in this way, and it must be remembered that the manors of the ancient demesne were in some respects taxed like cities and boroughs. ^ Biess, Geschichte des Wahlrechts zum englischen Farlament, 19, 20. ^ Biess, (yp. cit. p. 23, CH. m. § 8:] The Borough. 655 it*. In 1302 the sheriff of Suffolk bade it return members, sending the mandate, as he was bound to do, to the abbot's steward — the steward made no answer^ Then from 1304 we hear how the men of Bury have been making a 'conspiracy' and holding 'conventicles' among themselves; they have been pretending to have an alderman and a merchant gild and to be ' free burgesses.' They must pay heavy damages to the abbot, and those who are too poor to pay must go to prison for a month'. They have not a gild merchant, nor a community, nor a common seal, nor a mayor. Thus Bury soon drops out from the list of English boroughs ; it becomes a mere market- town governed by court leet and court baron, though long before this, Jocelin of Brakeland, no friend of the townsfolk, had allowed it 'the title and franchise of a borough.' The short-sightedness of some burgesses who would not pay repre- sentatives, the far-sightedness of some lords who just at the critical moment perceived that burgesses would not be good tenants, the inertness of sheriffs who did not care to enter, for no gain to themselves, upon a series of arduous struggles, the indifference of the king who had no need of the men of little towns, all made for the same result. Before the end of the fourteenth century the number of towns represented in parlia- ment had fallen to a hundred, and these were most unevenly distributed among the various counties. In Sussex Arundel, Bramber with Steyning, Chichester, East Grinstead, Horsham, Lewes, Midhurst and Shoreham were sending burgesses, while eight Yorkshire towns had dropped out of the list, namely Beverley, Boroughbridge, Malton, North Allerton, Pickering, Pontefract, Ravensburgh, and Ripon. We are not called upon to explain this phenomenon, for it belongs to the fourteenth century, but it- forcibly suggests that in the thirteenth no strict definition of a borough was possible. And in the end what is the legal definition of a borough ? The effect is put in place of the cause : — ' A burgh is an ancient towne, holden of the king or any other lord, which sendeth burgesses to the parliament... and it is called a burgh because it sendeth members to parliament*.' 1 Jocelin of Brakeland, p. 73. The charter is given in a Bury Eegister ; Camb. TJniv. Lib. Ff. ii. 33, f. 64 b. 2 ParU Writs, i. 123. ^ Gross, Gild Merchant, ii. 33-5. * Co. Lit. 108 b. See Stubbs, Const. Hist. iii. 448-450; Biess, Geschichte des Wahlreohts. 656 Jurisdiction and Communal Affairs. ' [bk. it. To whom Returning now to the larger, the indubitable, boroughs,, we borough are compelled to face the question, To whom are these fran- bSongT^ chises given and in whom do they inhere? The first step towards an answer is easy; we have but to glance at the charters and reply that they are given to the ' men,' ' burgesses' or ' citizens' of a certain place and their heirs. This of course opens the question. Who answer to the description 'the burgesses of such a place' or 'the men of such a place'? Really however there is another and a much harder question to be met. Let us suppose for a time that such a term as 'burgess' is perfectly intelligible and unambiguous; that if in the year 1250 we were placed in the town of X we could at once by the use of some plain legal test — such, for instance, as tenure — select the persons who at that moment were the burgesses of X and say how men might become and cease to be burgesses. All this done, we should still be forced to ask, In what sense is this grant made to these burgesses and their heirs? A lawyer will at once see that such terms without being tortured are patient of at least three, an English lawyer may say that they are patient of at least four, distinct meanings. The student of the early history of our boroughs will perhaps be impatient of all these meanings and apt to reprove the lawyers for enveloping a plain matter with meta- physical mists. But in the interest of this early history of our boroughs and, it may be added, of our villages, we are bound to come to very close quarters with legal ideas ; until they are mastered nothing is safe. Now (1) a grant to the burgesses of X may possibly give to each person who at the moment is a burgess of that town a separate right which he will hold by a several title and which he will enjoy in severalty. It may be a brief form of saying ' I give this right to A.B., also I give it to CD.,' and so forth, (2) It may confer the right on all the now burgesses of X to be enjoyed by them jointly or in common — we say 'jointly or in common,' for English law has known two forms of what, taking the phrase largely, we may call co-owner- ship : — when one of several ' tenants in common ' dies, his share passes under his will or by intestacy to his representative, his heir it may be, or hie executor: when one of several 'joint tenants ' dies, his share accrues to his fellows. (3) It may confer the right on an ideal person,, whose affairs will be managed by the burgesses of X, they acting for this purpose as an organized CH. III. § 8.J The Borough. 657 whole. And if we have to consider rights we have also to consider duties. The burgesses of X become liable for the farm of their borough. What does this mean ? Who is liable to pay what ? What goods or lands can the king seize if the rent of the borough be not duly paid to him ? The real difficulty of these questions will best be seen if Discussion beside a borough charter we place three other instruments, charters, very similar to it in form, however different they may be from it and from each other in substance. The Abbot and Convent of Malmesbury give notice to the world at large that they have granted a certain piece of ground at Pilton near Barnstaple 'to the men who have taken it of our house — our cell — of Pilton for the purpose of building houses, to have and to hold to them and their heirs of our said house of Pilton by rendering to the said church twelve pence yearly from each burgage'.' Now in this case we can hardly doubt that the rights given by the charter are rights given to each tenant severally, and rights that he is to enjoy in severalty.. He has taken a plot of building land, he is to hold it heritably on the terms of burgage tenure, though Pilton is not, and is not to be, a borough. There is to be no corporation ; nor only so, there is to be (so far as we can see) no co-ownership, no common enjoyment. We turn to another case. King John would have it known that he has granted to his men of Cornwall that certain moors shall be disafforested and that the said men may hunt thereon ; also that without their consent their serfs shall not be received into the liberties of the king's boroughs ; also that the fees of the honour of Mortain (which are small") shall not pay the full rate of scutage. ' Therefore,' he says, ' we will that the said men of Cornwall and their heirs shall hold all the premises of us and our heirs with all liberties and free customs'.' The third charter to which we would ask attention is one by which this same King John made a grant to all the free men of England and their heirs ; it is no other than what will be known for all time as the Great Charter. At the end of its famous clauses we read how all the men of England are to have and to hold these liberties to them and their heirs of King John and his heirs for ever. 1 Beglstr. Malmesbur. ii. 34. " See above, p. 236. » Bot. Cart. 206. P. M. 42 658 Jurisdiction and Communal Affairs, [bk. ii. Charters Now these last two instruments, the Cornish charter and borough, the Great Charter, are in form just like an ordinary borough the whoie'^' Charter. The king grants lihertates to the men of Nottingham, land. tjjg ujgjj of Cornwall, the men of England and their heirs. In what mode do the grantees hold the liberties ? Does each ' man' acquire a several right to be enjoyed in severalty ? Do all the 'men' become tenants in common or joint tenants, or again, is the true recipient of the grant a fictitious person, a corporation ? The form of the Great Charter and the charter for the men of Cornwall compel us to say that these questions have not yet been fairly faced. If we take the Great Charter and work out any theory as to its grantees and the mode in which they received the boon, we are brought to absurdities, or what seem to us absurdities. The modern Englishman who would take advantage of its provisions must show himself heir or assign (if such liberties be alienable) of some one who lived in 121.5 ; or, if a clause of the charter be broken, then either all Englishmen must join in an action against the offender, or the corporation of England must appear by its attorney. There, remains the possibility that it is a gift to uncertain persons, to all and singular who at any time shall answer the description 'men of the realm of England': — but is such a gift con- ceivable ? It may be replied that Magna Carta, whatever its form may be, is in substance no deed of grant but a great code of laws. That is very true, but the fact remains that the form of this solemn instrument is that of a deed of grant. That was the form which to the prelates, clerks and lawyers of the time seemed the most apt for the purpose. The king was to grant liberties to the men of England as he had granted them to the men of Cornwall and the men of London. Or let us look at the other side of this similitude: — Henry III. if he grants liberties to the men of Nottingham will execute an instrument whose jural form will be e-xactly the same as that of the charters that he seals in favour of the men of England. This makes the borough of Nottingham look, not like a corporation, but merely like a portion of the earth's surface within which certain laws are to prevail. Now it can hardly be doubted that certain clauses in the borough charters, if we conceive them to take effect by way of donation and not by way of legislation, should be read as grants Charters and laws. Criticism of the borough charters. CH. III. § 8.J Die Borough. 659 made to individuals of rights that are to be enjoyed by them in severalty. Such, for example, would be a clause declaring that the burgesses and their heirs shall hold their tenements in free burgage. It is like the Abbot of Malmesbury's charter for the men of Pilton. Each burgess gets a right to hold his tenement heritably at a burgage rent. 'The burgesses of X and their heirs' is here but a compendious phrase which saves one the trouble of naming a number of men by their proper names. And may this not also be true of other clauses, for instance, of the clause which declares how the burgesses and their heirs are to be free of toll throughout all England ? Suppose the grant made to the burgesses of X; a certain burgess of X goes into the town of F; toll is demanded from him ; he refuses to pay ; his chattels are seized. Now who is wronged, who can bring an action against the offender ? Has this injury been done to the individual merchant, or to the mass of the men of X as co-owners of a franchise, or to the corporation known as 'the borough of X'; or again, have there been several wrongs done ? There is good cause for doubting whether the lawyers of this age were ready with an answer to these questions. On the one hand we may find two citizens of Lincoln, who have been distrained in the town of Lynn, bringing their action against the bailiff of Lynn and relying on a charter granted to the citizens of Lincoln^. On the other hand it is common enough to find that the plaintiffs who take action for such a cause will be described as 'the citizens,' or ' the burgesses,' or ' the bailiffs,' or 'the mayor and commonalty' of the town whose charter has been infringed^; and yet we can not be certain that the courts would have given one action to the individual trader and another to the community, and compelled the offenders to pay first for unlawfully seizing a certain merchant's chattels and then for infringing a city's charter. Modem lawyers may be inclined to say that when such a clause is treated as conferring rights on each individual burgess it is treated as an act of legislation, not as an act of donation; that the burgess who brings the action is. not required" to prove (very possibly he could not prove) that he was heir to one of the original donees ; that in reality a law or ordinance has been made declaring that any person who at any 1 y. B. 49 Edw. III. f. 6 (HU. pi. 10). 2 Note Book, pi. 16, 145. 660 Jurisdiction and Communal Affairs, [bk. ii. Bights conferred on the burgesses jointly. Is the borongh •persona ficta ? time shall be a citizen of Lincoln shall be quit of toll; but then this distinction between laws and grants is not one that we find in our records or reports. There are however other clauses in the borough charters which can not be thus treated. For example, there is the clause relating to the fee farm of the ' borough,' which certainly does not mean that each burgess is to hold a certain share of the ' borough,' paj^ng for that share a certain rent to the king. Again, so far as we have observed, the extremely important clause which declares that the burgesses shall not be impleaded outside the borough is but very rarely construed to mean that a separate right of refusing to answer in foreign courts is conferred on each individual burgess. On the contrary, when a burgess is impleaded in the king's court, the regular practice is that the officers of the borough or ' the burgesses ' of the borough should intervene and claim cognizance of the cause, or (to use the language of the time) 'crave their court and obtain it.' It is at their instance, not at the instance of the defendant, that the king's justices stay their hands^. Analogies lying in the domain of seignorial justice serve to make this franchise the right of the community at large. If the tenant of a mesne lord be sued by proprietary action in the king's court, it is not for this tenant but for his lord to assert that the feudal rule is being infringed. Once more, if we take such a franchise as the return of writs we can not possibly treat this as having been conferred on individuals to be enjoyed by them in severalty. In some sense or another it must belong to the community as a whole. But then in what sense ? This brings us to the great problem. Is the right inherent in an artificial person or are the now existing burgesses co- owners of it? The best opinion that we have been able to form about this most difficult question is that the idea of an artificial person is already latent in English law, but that the lawyers are hardly aware of its presence ; they have reached the stage of feigning, but not the stage of knowing that they feign ; they are perhaps attempting to conceal from themselves the fact that they are feigning. 1 Note Book, 294, 314, 489, 577, 589, 952, 1429. The Norwich Custumal c. 13 provides that when cognizance is claimed for the civic court the costs of the proceeding shall be paid by the defendant, but if he can not pay, then the chamberlain of the city must pay. The claim of cognizance is treated as a matter which is of great importance to all the citizens. CH. III. § 8.] The Borough. 661 To those who have contended that as yet there are no Arguments . . , . . , against the municipal corporations some very large concessions must be existence made. In the first place, the law has no such term as cor- poratVons. poration, for universitas is not in common use^ and communitas and communa if they can be applied to a borough can be applied equally well to a county, a hundred, a township. In the second place, this term ' community ' is often so used as to indicate not an artificial person but a group of individuals. In Edward II. 's time certain^oyal commissioners were holding an inquest in the gildhall of Bristol ; the mayor, who objected to their proceedings, inflamed the citizens against them ; ' and when the said community understood his signs the whole community was in such a hurry to leave the hall that Robert Gamel and sixteen others wishing to quit the place with the said community fell down the steps' and were crushed to death : — in short the community of Bristol can rush out of its gildhalP. Learned men have often discussed the question whether The a corporation can commit a crime, and we have seen how to the of the English judges of Edward III.'s reign the doubt occurred J"^™^'' whether a corporation can commit even a trespass'. But of™""''?- the communities of an earlier time we may almost say that they seldom appear before the law without being charged with wrongful acts and defaults. They are always being punished. Every borough in England from the city of London downwards lives in daily peril of forfeiting its charters, of seeing its mercantile privileges annulled, of seeing its elected magistrates displaced and itself handed over to the mercies of some royal custos or firmarius. If Londoners insult the queen or take the wrong side in the Barons' War, the city will have to redeem its privileges witb an immense sum*; if in the town of Derby ' superfluous ' tolls be taken and , the members of the gild merchant be unduly favoured, the liberties of the borough will be seized^ The city of York claimed to farm the Ainsty ; in support of this claim the mayor produced a charter which 1 See above, p. 478. 2 Placit. Abbrev. p. 349. But even in the newspaper English of our own day ' the mayor and corporation attend divine service at the cathedral.' 3 See above, p. 474. * Eiley, Chronicles, p. 84 : the Londoners prayed that only the guilty might be punished. 6 P. Q. W. 160. 662 Jurisdiction and Communal Affairs, [bk. ii. purported to be of the fourth year of King John ; but the word quarto was written over an erasure. Judgment was given that the mayor should go to prison, that the charter should be quashed and that the citizens should lose all that they claimed thereunder*. The mayor of Sandwich was found guilty of asserting by acts of violence certain supposed franchises of his town ; ' and because he is convicted of the said trespass, and because whatever is done by the mayor in matters aflfecting the community is the act of the community itself, it is adjudged that the community of Sandwich do lose its liberty".' Now all this punishing of communities implies a great deal of ' solidarity,' if we may use a vague word, among the members of the groups of men that are thus punished ; but it is far from implying that there is an ideal person concerned. A modern legislator desirous of putting a stop to some bad practice — let us say the adulteration of goods — by imposing fines, may well hold it expedient to denounce these penalties against corporations aggregate as well as against natural persons". To do this may save him a world of trouble ; instead of having to laboriously define who shall be punished if those who conduct the business of an incorporated company expose adulterated wares for sale, he can simply inflict the fine on the company and leave the question who will be the poorer for it, to the working of the general law. Also he may hold that one of the best schemes for enforcing some rule of public policy may be to declare that if it be broken by the managers or other agents of a corporation, that corporation shall (if we like so to phrase it) suffer the penalty of death, be dissolved and ' wound up.' But then he will be conscious of the artifice that he is using, and it is just this consciousness of an artifice that we can not attribute to the lawyers of the thirteenth century. A community contemns the king's writs, a community relies upon a charter that has been tampered with ; therefore the community must be punished by fine or by loss of its liberties. Offences of And in this respect we can draw no line between the mu^tfe's? boroughs on the one hand, the counties, hundreds and townships ' Plaoit. Abbrev. 199. ' Plaoit. Abbrev. 273. 3 Interpretation Act 1889 (52 & 53 Vic. c. 63) sec. 2 : ' In the construction of every enactment relating to an offence punishable on indictment or on summary conviction .... the expression person shall, unless the contrary intention appears, include a body corporate.' CH. III. § 8.] The Borough. 663 on the other. Madox in his masterly way has proved this once and for alP. True that the county, the hundred, the rural township has, except in very exceptional cases, no charters, no liberties to forfeit ; but it can be fined and amerced ; and fined and amerced it is as a matter of common practice. Even in the nineteenth century a county may be indicted for non-repair of highways and until the other day a hundred might be sued when rioters had done damaged Collective liability to punish- ment is assuredly no sign of incorporation. Nor can we find incorporation in the mere fact that in The many cases ' the borough ' is farmed by the burgesses. A fam'ef!' *^ manor may be farmed by the men of the manor, a township by the men of the township". When the king accepted the burgesses as farmers in place of the sheriff, he certainly did not mean to exchange the liability of a well-to-do man for the liability of an ideal person who in many, if not most, cases would have no lands and no goods open to distraint. On the contrary, instead of the liability of a single man he accepted the joint and several liabilities of a large number of men. If the rent of the borough fell into arrear he could proceed against all the burgesses or any burgess for the money. A common practice of the Exchequer was to attack the rich. The sheriff would be ordered to summon six of the richer burgesses to answer for the rent*. This of course was for the king a very convenient procedure. He could get payment of his rent, his fines and his amercements out of those who had money, and then could say to the burgesses at large — ' Now you can settle the ultimate incidence of this impost among yourselves ; such settlement is your concern, not mine; at all events, it is not my concern so long as I am acting, not as judge, but as creditor; for all of you are, and each of you is, liable to me for the whole sum.' Then inside the borough, or the manor, there would have to be a settlement. To meet the annual rent there were funds which normally would be sufficient; the burgage rents, the tolls, the profits of the court should be applied for this 1 Firma Burgi, u. 5 ; and see above, pp. 522, 617. 2 Stat. 49