[AU Bights reserved.]




TN this edition the first chapter, by Prof. Maitland, is new. In Book II., c. ii. § 12, on 'Corporations and Churches' (formerly ' Fictitious Persons'), and c. iii. § 8, on ' The Borough,' have been recast. There are no other important alterations: but we have to thank our learned critics, and especially Dr Brunner of Berlin, for various observations by which we have endeavoured to profit. We have thought it convenient to note the paging of the first edition in the margin.

F. P. F. W. M.



rilHE 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 ofier 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.



PREFACE.......... v



LIST OF TEXTS........ xix

ADDENDA .......... xxii

INTRODUCTION ........ xxiii




The difficulty of beginning, 1. Proposed retrospect, 1. The classical age of Roman law, 2. The beginnings of ecclesiastical law, 2. Century in. Decline of Roman law, 3. Century IV. Church and State, 3. Century V. The Theodosian Code, 5. Laws of Euric, 5. Century VI. The century of Justinian, 6. The Lex Salica, 6. The Lex Ribuaria, and Lex Burgundionwm, 7. The Lex Romana Burgundionum, 7. The Lex Romana Visigothorum, 8. The Edict of Theoderic, 9. The Dionysian collection of canons, 9. Justinian's books, 9. Justinian and Italy, 10. Laws of jEthelbert, 11. Centuries VH and vm. Germanic laws, 12. System of personal laws, 13. The vulgar Roman law, 14. The latent Digest, 15. The capitularies, 16. Growth of canon law, 16. Centuries IX and X. The false Isidore, 17. The forged capitularies, 17. Church and State, 18. The darkest age, 18. Legislation in England, 19. England and the Continent, 20. Century XI. The Pavian law-school, 21. The new birth of Roman law, 22. The recovered Digest, 23. The influence of Bolognese jurisprudence, 24.


Imperfection of written records of early Germanic law, 25. Anglo-Saxon dooms and custumals, 27. Anglo-Saxon land-books, 28. Survey of Anglo-Saxon institutions, 29. Personal conditions : lordship, 29. The family, 31. Banks : ceorl, eorl, gesfS, 32. Thegn, 33. Other distinctions, 34. Privileges of the clergy, 34. Slavery and slave trade, 35. Manumission, 36. Courts and justice, 37. Procedure, 38. Temporal and spiritual jurisdiction, 40. The king's jurisdiction, 40. The Witan, 41. County and hundred courts, 42. Private jurisdiction, 43. Subject-matter of Anglo-Saxon justice, 43. The king's peace, 44. Feud and atonement, 46. Wer, wife and b6t, 48. Difficulties in compelling submission to the courts, 49. Maintenance of offenders by great men, 50. Why no trial by battle, 50. Treason, 51. Homicide, 52. Personal injuries : misadventure, 53. Archaic responsibility, 55. Theft, 55. Property, 56. Sale and other contracts, 57. Claims for stolen goods: warranty, 58. Land tenure, 60. Book-land, 60. Lren-land, 61. Folkland, 61. Transition to feudalism, 62.


Obscurity of early Norman legal history, 64. Norman law was French, 66. Norman law was feudal, 66. Feudalism in Normandy, 67. Dependent land tenure, 69. Seignorial justice, 72. Limits of ducal power, 73. Legal procedure, 74. Criminal law, 74. Ecclesiastical law, 74. The truce of God, 75. Condition of the peasantry, 76. Jurisprudence, 77. Lanfranc of Pavia, 77.


Effects of the Norman Conquest, 79. No mere mixture of national laws, 79. History of our legal language, 80. Struggle between Latin, French and English, 82. The place of Latin, 82. Struggle between French and English, 83. Victory of French, 84. French documents, 85. French law-books, 87. Language and law, 87.

Preservation of old English law, 88. The Conqueror's legislation, 88. Character of William's laws, 89. Personal or territorial laws, 90. Maintenance of English land-law, 92. The English in court, 93. Norman ideas and institutions, 93. Legislation : Rufus and Henry I., 94. Stephen, 96. The law-books or Leges, 97. Genuine laws of William I., 97. The Quadripartitus, 98. Leges Henrici, 99. Consiliatio Cnutf, 101. Instituta Cnwti, 101. French Leis of William I., 101. Leges Edwardi Confessoris, 103. Character of the law disclosed by the Leges, 104. Practical problems in the Leges, 105. Practice of the king's court, 107. Royal justice, 108.


Contact of English with Roman and Canon law, 111. Cosmopolitan claims of Roman law, 112. Growth of Canon law, 112. Gratian, 113. Decretales Gregarii, 113. The Canonical system, 114. Relation of Canon to Roman law, 116. Roman and Canon law in England, 117. Vacarius, 118. English legists and canonists, 120. Scientific work in England, 120. The civilian in England, 122.

Province of ecclesiastical law, 124. Matters of ecclesiastical economy, 125. Church property, 126. Ecclesiastica] dues, 127. Matrimonial causes, 127. Testamentary causes, 128. Fidei laesio, 128. Correction of sinners, 129. Jurisdiction over clerks, 130. Miserabiles personae, 131. The sphere of Canon law, 131. Influence of Canon upon English law, 131. English law administered by ecclesiastics, 133. Nature of canonical influence, 134.


The work of Henry II., 136. Constitutions of Clarendon, 137. Assize of Clarendon, 137. Inquest of Sheriffs, 137. Assize of Northampton, 137. Henry's innovations. The jury and the original writ, 138. Essence of the jury, 138. The jury a royal institution, 140. Origin of the jury : The Frankish inquest, 140. The jury in England, 141. The jury and fama publica, 142. The inquest in the Norman age, 143. Henry's use of the inquest, 144. The assize utrum, 144. The assize of novel disseisin, 145. Import of the novel disseisin, 146. The grand assize, 147. The assize of mort d'ancestor, 147. The assize of darrein presentment, 146. Assize and jury, 149. The system of original writs, 150. The accusing jury, 151.

Structure of the king's courts, 153. The central court, 154. Itinerant justices, 155. Cases in the king's court, 156. Law and letters, 160. Richard Fitz Neal, 161. Dialogue on the Exchequer, 161. Ranulf Glanvill: his life, 162. Tractatus de Legibus, 163. Roman and Canon law in Glanvill, 165. English and continental law-books, 167.

The limit of legal memory, 168. Reigns of Richard and John, 169. The central court, 169. Itinerant justices, 170. Legislation, 170. The Great Charter, 171. Character of the Charter, 172.


Law under Henry III., 174 General idea of law, 174. Common law, 176. Statute law. The Charters, 178. Provisions of Merton, Westminster and Marlborough, 179. Ordinance and Statute, 181. The king and the law, 181. Unenacted law and custom, 183. Local customs, 184. Kentish customs, 186. Englishry of English law, 188. Equity, 189.

The king's courts, 190. The exchequer, 191. Work of the exchequer, 191. The chancery, 193. The original writs, 195. The chancery not a tribunal, 197. The two benches and the council, 198. Council and parliament, 199. Itinerant justices, 200. Triumph of royal justice, 202. The judges, 203. Clerical justices, 205.

Bracton, 206. His book, 207. Character of his work : Italian form, 207. English substance, 208. Later law books, 209. Legal literature, 210.

The legal profession, 211. Pleaders, 211. Attorneys, 212. Non-professional attorneys, 213. Professional pleaders, 214. Regulation of pleaders and attorneys, 215. Professional opinion, 217. Decline of Romanism, 217. Notaries and conveyancers, 218. Knowledge of the law, 220.

English law in Wales, 220. English law in Ireland, 221. English and Scottish law, 222. Characteristics of English law, 224.



CHAPTER I. TENUBE, pp. 229—406.

Arrangement of this book, 229. The medieval scheme of law, 229. The modern scheme, 230. Our own course, 231.

§ 1. Tenure in General, pp. 232—240.

Derivative and dependent tenure, 232. Universality of dependent tenure, 234. Feudal tenure, 234. Analysis of dependent tenure, 236. Obligations of tenant and tenement, 237. Intrinsec and forinsec service, 238. Classification of tenures, 239.

§ 2. Frankalmoin, pp. 240—251.

Free alms, 240. Meaning of 'alms,' 241. Spiritual service, 242. Gifts to God and the saints, 243. Free alms and forinsec service, 244. Pure alms, 245. Frankalmoin and ecclesiastical jurisdiction, 246. The assize Utrum, 247. Defeat of ecclesiastical claims, 248. Frankalmoin in cent, xiii., 250.

§ 3. Knight's Service, pp. 252—282.

Military tenure, 252. Growth and decay of military tenure, 252. Units of military service, 254. The forty days, 254. Knight's fees, 256. Size of knight's fees, 256. Apportionment of service, 257. Apportion-

ment between king and tenant in chief, 258. Honours and baronies, 259. The barony and the knight's fee, 260. Relativity of the knight's fee, 261. Duty of the military tenant in cMef, 262. Position of military subtenants, 263. Knigfat's service due to lords who owe none, 264. Scutage, 266. Scutage between king and tenant in chief, 267- Scutage and fines for default of service^ 269. Scutage and the military sub-tenants, 271. Tenure by escuage, 272. The lord's right to scutage, 274. Eeduction in the number of knight's fees, 275. Meaning of this reduction, 276. Military combined with other services, 277. Castle-guard, 278. Thegnage and drengage, 279. Tenure by barony, 279. The baronage, 280. Escheated honours, 281.

§ 4. Serjeanty, pp. 282—290.

Definition of serjeanty, 282. Serjeanty and service, 283. Types of serjeanty owed by the king's tenants in chief, 283. Serjeanties due to mesne lords, 285. Military serjeanties due to mesne lords, 286. Essence of serjeanty, 287. The serjeants in the army, 288. Serjeanty in Domesday Book, 288. Serjeanty and other tenures, 290.

§ 5. Socage, pp. 291—296.

Socage, 291. Types of socage, 291. Extension of socage, 293. Fee farm, 293. Meaning of 'socage,' 293. Socage in contrast to military tenure, 294. Socage as the residuary tenure, 294. Burgage, 295. Bur-gage and borough customs, 295. One man and many tenures, 296.

§ 6. Homage and Fealty, pp. 296—307.

Homage and fealty, 296. Legal and extra-legal effects of homage, 297. The ceremony of homage, 297. The oath of fealty, 298. Liegeance, 298. Vassalism in the Norman age, 300. Bracton on homage, 301. Homage and private war, 301. Sanctity of homage, 303. Homage and felony, 303. Feudal felony, 305. Homage, by whom done and received, 306. The lord's obligation, 306.

§ 7. Belief and Primer Seisin, pp. 307—318.

The incidents of tenure, 307. Heritable rights in land, 307. Reliefs, 308. Rights of the lord on the tenant's death, 310. Prerogative rights of the king, 311. Earlier history of reliefs, 312. Relief and heriot, 312. Heritability of fees in the Norman age, 314. Mesne lords and heritable fees, 315. History of the heriot, 316. Relief on the lord's death, 317.

§ 8. Wardship and Marriage, pp. 318—329.

Bracton's rules, 319. Wardship of female heirs, 320. Priority among lords, 320. What tenures give wardship, 321. Prerogative wardship, 321. The lord's rights vendible, 322. Wardship and the serjeanties, 323. The law in Glanvill, 323. Earlier law, 33&. Norman law, 326. The Norman apology, 3.26. Origin of wardship and marriage, 327.

§ 9. Restraints on Alienation, pp. 329—349.

Historical, theories, 329. Modes of alienation, 330. Preliminary distinctions, 331. Glanvill, 332. The Great Charter, 332. Bracton, 332. Legislation as to mortmain, 333. Alienation of serjeanties, 334. Special law for the king's tenants in chief, 335. Growth of the prerogative right, 336. Quia emptores, 337. Disputed origin of the prerogative right, 338. Summary of law after the Charter, 339. Older law, 340. Anglo-Norman charters, 340. Discussion of the charters, 341. Conclusions as to law of the Norman age, 343. Usual form of alienation, 345. General summary, 345. Gifts by the lord with his court's consent, 346. Alienation of seignories, 346. Law of attomment, 347. Practice of alienating seigno-ries, 348.

§ 10. Aids, pp. 349—351.

Duty of aiding the lord, 349.

§ 11. Escheat and Forfeiture, pp. 351—356.

Escheat, 351. The lord's remedies against a defaulting tenant, 352. Action in the king's court, 352. Distress, 353. Proceedings in the lord's court, 354. Survey of the various free tenures, 355.

§ 12. Unfree Tenure, pp. 356—383.

Freehold tenure, 356. Technical meaning of ' freehold,' 357. Villeinage as tenure and as status, 358. Villein tenure: iinproteeted by the king's court, 359. Want of right and want of remedy, 360. Protection by manorial courts, 361. Evidence of the 'extents,' 362. Attempt to define villein tenure, 362. The manorial arrangement, 362. The field system, 364. The virgates, 364. Villein services, 365. A typical case of villein services, 366. Week work and boon days, 367. Merchet and tallage, 368. Essence of villein tenure, 368. The will of the lord, 370. Villeinage and labour, 370. Uncertainty of villein services, 372. Tests of villeinage, 372. Binding force of manorial custom, 376. Treatment of villein tenure in practice, 377. Heritable rights in villein tenements, 379. Unity of the tenement, 381. Alienation of villein tenements, 382. Villein tenure and villein status, 382.

§ 13. The Ancient Demesne, pp. 383—406.

The ancient demesne and other royal estates, 383. Immunities of the ancient demesne, 384. Once ancient demesne, always ancient demesne, 385. Peculiar tenures on the ancient demesne, 385. The little writ of right, 385. The Monstraverunt, 388. The classes of tenants, 389. Bracton's theory, 389. Theory and practice, 391. Difficulties of classification, 393. Sokemanry and socage, 394. Later theory and practice, 396. Why is a special treatment of the ancient demesne necessary 3 397. The king and the conquest settlement, 398. Royal protection of royal tenants, 400. Customary freehold, 401. No place for a tenure between freehold and villeinage, 404. The conventioners, 405. Conclusion, 406.


THE SORTS AND CONDITIONS OF MEN, pp. 407—511. Law of personal condition, 407. Status and estate, 408.

§ 1. The Earls and Barons, pp. 408—411. The baronage, 408. Privileges of the barons, 409.

§ 2. The Knights, pp. 411—412. Knighthood, 412.

§ 3. The Unfree, pp. 412—432.

The unfree, 412. General idea of serfage, 413. Relativity of serfage, 415. The serf in relation to his lord, 415. Sightlessness of the serf, 416. Serfdom de iure and serfdom de facto, 417. Covenant between lord and serf, 418. The serf in relation to third persons, 419. The serf's property, 419. Difficulties of relative serfdom, 420. The serf in relation to the state, 421. How men become serfs, 422. Servile birth, 422. Mixed marriages, 423. Influence of the place of birth, 424. Villeins by confession, 424. Serfdom by prescription, 425. How serfdom ceases, 427. Manumission, 427. The freedman, 428. Modes of enfranchisement, 429. Summary, 429. Retrospect. Fusion of villeins and serfs, 430. The levelling process, 431. The number of serfs, 431. Rise of villeins, 432.

§ 4. The JBeligiotts, pp. 433—438.

Civil death, 433. Growth of the idea of civil death, 433. Difficulties arising from civil death, 435. The monk as agent, 436. The abbatial monarchy, 437. Return to civil life, 437. Civil death as a development of the abbot's mund, 438.

§ 5. The Clergy, pp. 439—457.

Legal position of the ordained clerk, 439. The clerk under temporal law, 439. Exceptional rules applied to the clerk, 440. Benefit of clergy, 441. Trial in the courts of the church, 443. Punishment of felonious clerks, 444. What persons entitled to the privilege, 445. What offences within the privilege, 446. The Constitutions of Clarendon, 447. Henry II.'s scheme, 448. Henry's scheme and past history, 449. Henry's allegations, 449. Earlier law: the Conqueror's ordinance, 449. The Leges Henrici, 450. Precedents for the trial of clerks, 450. Summary, 452. Henry's scheme and the Canon law, 454. The murderers of clerks, 456.

§ 6. Aliens, pp. 458—467.

The classical common law, 458. Who are aliens ? 458. Disabilities of the alien, 459. Naturalization, 460. Law of earlier times, 460. Growth of the law disabling aliens, 461. The king and the alien, 462. The kinds of aliens, 464. The alien merchants, 464. The alien and the common law, 465. Has the merchant a peculiar status? 466. The law merchant, 467.

§ 7. The Jews, pp. 468—475.

General idea of the Jew's position, 468. The Exchequer of the Jews, 469. Relation of the Jew to the king, 471. Eelation of the Jew to the world at large, 473. Law between Jew and Jew, 474. Influence of the Jew upon English law, 475.

§ 8. Outlaws and Convicted Felons, pp. 476—478. Outlawry, 476. Condition of the outlaw, 477.

§ 9. Excommunicates, pp. 478—480.

Excommunication, 478. Spiritual leprosy, 478. Excommunication and civil rights, 480.

§ 10. Lepers, Lunatics and Idiots, pp. 480—481. The leper, 480. The idiot, 481. The lunatic, 481.

§ 11. Women, pp. 482—485.

Legal position of women, 482. Women in private law, 482. Women in public law, 483. Married women, 485.

§ 12. Corporations and Churcfos, pp. 486—511.

The corporation, 486. Beginnings of corporateness, 487. Personality of the corporation, 488. The anthropomorphic picture of a corporation, 489. Is the personality fictitious? 489. The corporation at the end of the middle ages, 489. The corporation and its head, 491. The corporation in earlier times, 492. Gradual appearance of the group-person, 493. The law of Bracton's time, 494. The universitas and the communitas, 494. Bracton and the universitas, 495. No law as to corporations in general, 497.

Church lands, 497. The owned church, 497. The saints as persons, 499. The saint's administrators, 500. Saints and churches in Domesday Book, 500. The church as person, 501. The church as universitas and persona fata, 502. The temporal courts and the churches, 503. The parish church, 503. The abbatial church, 504. The episcopal church, 505. Disintegration of the ecclesiastical groups, 506. Communal groups of secular clerks, 507. Internal affairs of clerical groups, 508. The power of majorities, 509. The ecclesiastical and the temporal communities, 509. The boroughs and other land communities, 510.

§ 13. The King and the Crown, pp. 511—526.

Is there a crown? 511. Theories as to the king's two bodies, 511. Personification of the kingship not necessary, 512. The king's rights as intensified private rights, 512. The king and other lords, 513. The kingship as property, 513. The king's rights can be exercised by him, 514. The king can do wrong but no action lies against him, 515. King's land and crown land, 518. Slow growth of a law of 'capacities,' 518. No lay corporations sole, 520. Is the kingdom alienable? 521. The king can die, 521. The king can be under age, 522. Germs of a doctrine of 'capacities,' 523. Personification of the crown, 524. Re-trospect, 526.


Place of the law of jurisdiction in the medieval scheme, 527. All temporal jurisdiction proceeds from the king, 528. The scheme of courts, 529. Division of the land, 529. The county court, 529. The hundred court, 530. The sheriffs turn, 530. Seignorial courts, 530. Feudal courts, 531. Franchise courts, 531. Leets, 532. Borough courts, 532. The king's courts, 532.

§ 1. The County, pp. 532—556.

The county, 532. The county officers, 533. The county community, 534. The county court, 535. Identity of county and county court, 536. Constitution of the county court, 537. Suit of court no right, but a burden, 537. Suit of court is laborious, 538. Sessions of the court, 538. Full courts and intermediate courts, 539. The suitors, 540. Suit is a 'real'burden, 541. ' Reality'of suit, 542. The vill as a suit-owing unit, 542. Inconsistent theories of suit, 543. The court in its fullest form, 544. The communal courts in earlier times, 545. Struggle between various principles, 546. Suit by attorney, 547. Representative character of the county court, 547. The suitors as doomsmen, 548. A session of the county court, 549. The suitors and the dooms, 550. Powers of a majority, 552. The buzones, 553. Business of the court, 553. Outlawry in the county court, 554. Governmental functions, 554. Place of session, 555.

§ 2. The Hundred, pp. 556—560.

The hundred as a district, 556. The hundred court, 557. Hundreds in the king's hands, 557. Hundreds in private hands, 558. Duties of the hundred, 558. The sheriff's turn, 559.

§ 3. The Vill and the Township, pp. 560—567.

England mapped out into vills, 560. Vill and parish, 560. Discrete vills, 561. Hamlets, 562. Vill and village, 562. Vill and township, 563. Ancient duties of the township, 564. Statutory duties, 565.

Contribution of township to general fines, 566. Exactions from townships, 566. Miscellaneous offences of the township, 566. Organization of the township, 567.

§ 4. The Tithing, pp. 568—571.

Frankpledge, 568. The system in cent, xiii., 568. Township and tithing, 568. The view of frankpledge, 570. Attendance at the view, 570. Constitution of tithings, 571.

§ 5. Seignorial Jurisdiction, pp. 571—594.

Regalities and feudal rights, 571. Acquisition of regalities, 572. Theories of royal lawyers, 573. Various kinds of franchises, 574. Fiscal immunities, 574. Immunities from personal service, 574. Immunities from forest law, 575. Fiscal powers, 575. Jurisdictional powers, 576. Contrast between powers and immunities, 577. Sake, soke, toll and team, 578. Sake and soke in cent, xiii., 579. View of frankpledge, 580. The leet, 580. The vill and the view, 581. The assize of bread and beer, 581. High justice, 582. High franchises claimed by prescription, 584. The properly feudal jurisdiction, 584. The feudal court is usually a manorial court, 585. Jurisdiction of the feudal court, 586. Civil litigation : personal actions, 587. Actions for freehold land, 587. Actions for villein land, 588. Litigation between lord and man, 588. Presentments, 589. Governmental powers and by-laws, 590. Appellate jurisdiction, 590. Constitution of the feudal court, 592. The president, 592. The suitors, 592.

§ 6. The Manor, pp. 594—605.

The manor, 594 ' Manor' not a technical term, 595. Indefiniteness of the term, 596. A typical manor, 596. The manor house, 597. Occupation of the manor house, 598. Demesne land, 599. The freehold tenants, 600. The tenants in villeinage, 601. The manorial court, 602. Size of the manor, 603. Administrative unity of the manor, 604. Summary, 604.

§ 7. The Manor and the Township, pp. 605—634.

Coincidence of manor and vill, 605. Coincidence assumed as normal, 606. Coincidence not always found, 607. Non-manorial vills, 608. Manors and sub-manors, 609. The affairs of the non-manorial vill, 610. Permanent apportionment of the township's duties, 610. Allotment of financial burdens, 611. The church rate, 612. Apportionment of taxes on movables, 615. Actions against the hundred, 616. Economic affairs of the non-manorial vill, 617. Intercommoning vills, 618. Return to the manorial vill, 620. Rights of common, 620. Rights of common and communal rights, 620. The freeholder's right of common, 621. The freeholder and the community, 622. Freedom of the freeholder, 623. Communalism among villeins, 624. The villein community, 624. Com-munalism and collective liability, 627. The community as farmer, 628. Absence of communal rights, 629. Communal rights disappear upon

examination, 629. Co-ownership and corporate property, 630. The township rarely has rights, 632. The township in litigation, 632. Transition to the boroughs, 633.

§ 8. The Borough, pp. 634—688.

Cities and boroughs, 634. The vill and the borough, 634. The borough and its community, 635. Sketch of early history, 636. Borough and shire, 636. The borough as vill, 637. The borough's heterogeneity, 637. The borough and the king, 638. The borough and the gilds, 639. Transition to cent, xiii., 639.

Inferior limit of burgality, 640. Representation in parliament, 641. The typical boroughs and their franchises, 642. Jurisdictional privileges, 643. Civil jurisdiction, 644. Criminal jurisdiction, 644. Return of writs, 644. Privileged tenure, 645. Mesne tenure in the boroughs, 645. Seignorial rights in the boroughs, 646. Customary private law, 647. • Emancipation of serfs, 648. Freedom from toll, 649. The firma burgi, 650. What was farmed, 650. The farm of the vill and the soil of the vill, 652. Lands of the borough, 652. Waste land, 653. The borough's revenue, 655. Chattels of the borough, 656. Elective officers, 656. Borough courts and councils, 657. By-laws and self-government, 660. Limits to legislative powers, 661. Enforcement of by-laws, 661. Rates and taxes, 662. The borough's income, 663. Tolls, 664. The gild merchant, 664. The formation of a gild, 664. The gild and the government of the borough, 665. Objects of the gild, 666. The gild and the burgesses, 667. The gild courts, 667. The borough as a franchise holder, 668.

Corporate character of the borough community, 669. Corporateness not bestowed by the king, 669. Gild-like structure of the community, 670. Admission of burgesses, 671. The title to burgherhood, 671. The 'subject' in the borough charters, 672. Discussion of the charters, 673. Charters for the borough, the county and the whole land, 674. Charters and laws, 674. The burgesses as co-proprietors, 676. The community as bearer of rights, 676. Inheritance, succession and organization, 677. Criminal liability of the borough, 678. Civil liability, 679. The communities in litigation, 680. Debts owed to the community, 682. The common seal, 683. The borough's property, 685. The borough's property in its tolls, 685. The ideal will of the borough, 686. The borough corporation, 686. The communities and the nation, 687.


A. -S. = Anglo-Saxon.

Bl. Com. = Blackstone's Commentaries.

Co. =Coke.

Co. Lit. =Coke upon Littleton.

D. B. , = Domesday Book

D. G.. R. =Deutsches Genossenschaftsrecht.

D. R. G. = Deutsche Rechtsgeschichte1.

E. H. R. = English Historical Review. Fitz. Abr. =Fitzherbert's Abridgement. Fitz. Nat Brev. = Fitzherbert's Natura Brevium. Harv. L. R. = Harvard Law Review.

Lit. = Littleton's Tenures.

L. Q. R. =Law Quarterly Review.

Hon. Germ. =Monumenta Germaniae.

P. C. = Pleas of the Crown.

P. Q. W. =Placita de Quo Warranto.

Reg. Brev. =Registrum Brevium.

Rep. = Coke's Reports.

R. H. = Hundred Rolls.

Rot. Cart. = Charter Rolls.

Rot. Cl. = Close Rolls.

Rot. Parl. = Parliament Rolls.

Rot. Pat. = Patent Rolls.

Sec. Inst. = Coke's Second Institute.

Sel. Chart. =Stubbs's Select Charters.

X. =Decretales Gregorii IX.

Y. B. =Year Book.

1 The second edition of Schroder's D. E. G. is referred to.


[R=Bolls Series. Bee. Com. = Record Commission. Seld. = Selden Society. Camd. = Camden Society. Surt. = Snrtees Society.]

Die Gesetze der Angelsachsen, ed. F. Liebermann, in progress.

Die Gesetze der Angelsachsen, ed. Reinhold Schmid, 2nd ed., Leipzig, 1858.

Ancient Laws and Institutes of England, 8vo. ed. (Kec. Com.).

Councils and Ecclesiastical Documents, ed. Haddan and Stubbs, vol. iii.

Oxford, 1871.

Quadripartitus, ed. F. Liebermann, Halle, 1892. Consiliatio Cnuti, ed. F. Liebermann, Halle, 1893. Leges Edwardi Confessoris, ed. F. Liebermann, Halle, 1894. Institute Cnuti, ed. F. Liebermann, Transactions of Royal Hist. Soc.

N. S. vol. vii. p. 77.

Codex Diplomaticus JSvi Saxonici, ed. J. M. Eemble (Eng. Hist Soc.). Diplomatarium Anglicum Mvi Saxonici, ed. B. Thorpe, London, 1865. Cartularium Saxonicum, ed. W. de G. Birch, 1885 ff.

Placita Anglo-Normannica, ed. M. M. Bigelow, London, 1879.

Select Charters, ed. W. Stubbs, Oxford, 1881.

Chartes des Liberties Anglaises, ed. Ch. Bemont, Paris, 1892.

Statutes of the Realm, vol. i. (Rec. Com.), 1800.

Bolls of the King's Court, Kic. I. (Pipe Roll Soc.).

Rotuli Curiae Regis temp. Ric. I. et Joh., ed. Palgrave (Rec. Com.).

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.). Somersetshire Assize Rolls (Somers. Record Soc.).

1 For texts relating to Normandy see below, vol. i. pp. 64-5; and for texts relating to the English boroughs, see below, vol. i. pp. 642-3.

Collections of ancient laws and documents.

Judicial Records.

Select Cases from Coroners' Rolls (Seld.). 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.).

Red Book of the Exchequer (R).

Liber Niger Scaccarii, ed. Hearne, Oxford, 1728.

Rotuli Literarum Clausarum, 1204-1227 (Rec. Com.).

Rotuli Literarum Patentium, 1201-1216 (Rec. Com.).

Rotuli 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 Hundredorum, 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 Genealogicum (Rec. Com.).

Foedera, Conventiones etc., ed. 1816 (Rec. Com.).

Prynne, Records, i.e. An exact Chronological Vindication...of the King's Supreme Ecclesiastical Jurisdiction, etc., London, 1655.

Munimenta Gildhallae (R), containing Liber Albus and Liber Custumarum.

Bracton, Tractatus de Legibus, ed. 1569.

Bracton and Azo (Seld.).

Britton, ed. F. M. Nichols, Oxford, 1865.

Fleta, seu Commentarius luris Anglican!, ed. 1685.

Glanvill, Tractatus de Legibus, ed. 1604.

Hengham, Summae, printed at the end of Selden's ed. of Fortescue, De

Laudibus. The Mirror of Justices (Seld.).

Year Books of 20-1, 21-2, 30-1, 32-3, 33-5 Edward I. (R).

Abbatum. Gesta Abbatum Monasterii S. Albani (R). Abingdon, Chronicon Monasterii de (R). Anglo-Saxon Chronicle (R). Annales Monastic! (R).

Miscellaneous Becords.




Chronicles, Annals etc.

Antiquis Legibus, Liber de (Camd.).

Becket Materials for the Life of Thomas Becket (E).

Benedictus Abbas. See Gesta Henrici.

Brakelonda, Chronica Jocelini de (Camd.).

Burton, Annales de, in Annales Monastici, voL i. (R).

Cambrensis. See Giraldus.

Canterbury. See Gervase.

Coggeshall, Radulphi de, Chronicon Anglicanum (B).

Cotton, Bartholomaei de, Historia Anglicana (R).

Diceto, Radulfi de, Opera Historica (R).

Dunstaplia, Annales Prioratus de, in Annales Monastic!, vol. iii. (R).

Durham, Symeon of, The Historical Works of (R).

Eadmeri, Historia Novorum (R).

Edward I. and Edward II., Chronicles of (R).

Eveshamensis, Chronicon Abbatiae (R).

Flores Historiarum (R).

Franciscans, 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, Chronicon (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 Curiah'um (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, Willelmi, 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). Wigorniensis, Florentii, Chronicon (Eng. Hist. Soc.). Wykes, Thomae, Chronicon, in Annales Monastici, vol. iv. (R). York, Historians of the Church of (R).

Academica, Munimenta (R).

Cantuarienses, Epistolae, in Chronicles etc. of Richard I., voL ii. (R).

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, Registrutn Johannis (R).

Royal and other Historical Letters, Henry III. (R).

Saresberiensis, Joannis, Opera, ed. Giles, Oxford, 1848.


Bath, Two Chartularies (Somerset Record Soc. 1893).

Battle, Cartulary (Camd.).

Brinkburn, Cartulary (Surt.).

Burton, Cartulary (Salt Society, 1884).

Gloucester, History and Cartulary (R).

Guisborough, Cartulary (Surt).

Malmesbury, Register (R).

Newminster, Cartulary (Surt.).

Paul's, Domesday of St (Camd.).

Peterborough, Black Book of, at the end of Chronicon Petroburgense


Ramsey, Cartulary (R). Rievaulx, Cartulary (Surt). Sarum, Charters and Documents of (R). Selby, Coucher Book (Yorkshire Archaeological Soc. 1891-3). WhaJley, 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.). Madox, Fonnulare Anglican urn, London, 1702. Monasticon Anglicanum, ed. 1817 etc.


p. 33, last lines. As to the bwh-geat (not burh-geat-seff) see W. H. Stevenson, E. H. R. xii. 489 ; Maitland, Township and Borough, 209.

p. 118. Dr Liebermann has withdrawn the suggestion that Vacarius was the author of the tract on Lombard law. See E. H. R. vol. xiii. p. 297. The Summa de Matrimonio has been printed in L. Q. R. xiii. 133, 270.

p. 556, note 1. Add a reference to J. H. Round, The Hundred and the

Geld, E. H. R. x. 732. p. 663. As causes of municipal expenditure we ought to have mentioned

the many presents, of a more or less voluntary kind, made by the

burgesses to kings, magnates, sheriffs and their underlings. For these

see the Records of Leicester, ed. Bateson, passim.


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 Bracton, 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 philosophical 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

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. Save 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

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 act complained of as an offence 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 of the rules administered by courts of justice. We have not said that it must be, or that it always is, a sum of uniform and consistent rules (as uniform and consistent, that is, as human fallibility and the inherent difficulties of human affairs permit) administered 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 morality beyond the commandments of law; no less is it true, though

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 the 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

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 modern 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 conclusive ; 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

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 conditions of men to attend to religious and to legal affairs, and the development, through their special studies, of jurisprudence 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 canonized legislator is shown in England, as late as the fourteenth century, by the attribution to King Alfred of everything supposed 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 positive 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-

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

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 in 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 denned in the series of dooms which stretches from ./Ethelbirht 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 considerable additions or modifications of form received directly or indirectly from the Roman system. Both the Germanic and the Romanic 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 Frankish law. The Frankish monarchy, the nearest approach to a civilized power that existed in Western Europe since the barbarian invasions, was in many

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 hypothetical 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 distinction. 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, agriculture, is not here the question. We speak of law, and within the sphere of law everything that is Roman or Romanized can

be accounted for by later importation. We know that the language and the religion of Rome were effaced. Roman 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 importance1. 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 Roman in them is ecclesiastical. The danger of arguing in these matters from a mere enumeration of coincidences 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 Roman 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 Roman 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 Roman example made known to them by Augustine and his successors2.

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 Roman 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.

* According to Bede (ii. 5) .Sthelbirht of Kent set dooms in writing ' iuxta exempla Bomanorum.' It is of course quite possible that a few of the more learned among the clergy may at times have studied some books of Boman 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 Jaffe', Monuments Moguntina, 32. On this see Savigny, Geschichte des romischen Bechts, c. 6, § 135.

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 government, 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

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 haye 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 'reception* 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 maintained 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 modern ideas. That is a fault into which every professional tradition is

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.

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 continental 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 deferred 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 constitutions. 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 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 nave 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, 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.





SUCH is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it: words such as bishop, priest and deacon1. If we would search out the origins of Roman law, we must study Babylon: this at least was the opinion of the great Romanist of our own day*. A statute of limitations must be set; but it must be arbitrary. The web must be rent; but, as we rend it, we may watch the whence and whither of a few of the severed and ravelling threads which have been making a pattern too large for any man's eye.

To speak more modestly, we may, before we settle to our task, look round for a moment at the world in which our English legal history has its beginnings. We may recall to memory a few main facts and dates which, though they are easily ascertained, are not often put together in one English book, and we may perchance arrange them in a useful order if we make mile-stones of the centuries*.

1 ^Ethelb. l.

2 Ihering, Yorgeschichte der Indoeuropaer; eee especially the editor's preface.

* The following summary has been compiled by the aid of Karlowa, E6-mische Bechtsgeschichte, 1885—Kriiger, Geschichte der Quellen des romischen Bechts, 1888—Conrat, Geschichte der Quellen des romischen Bechts im friiheren Mittelalter, 1889—Maassen, Geschichte der Quellen des canonischen Bechts, 1870—Ldning, Geschichte des deutschen Kirchenrechts, 1878—Sohm, Kirchen-recht, 1892—Binschins, System des katholischen Kirchenrechts, 1869 ff.—A. Tardif, Histoire des sources da droit canonique, 1887—Brunner, Deutsche Bechtsgeschichte, 1887—Schroder, Lehrbuch der deutschen Bechtsgeschichte, ed. 2, 1894—Esmein, Cours d'histoire dn droit francais, ed. 2, 189C—Viollet, Histoire du droit civil fran^ais, 1893.

The difficulty of beginning.

Proposed retrospect.

By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 2121, Ulpian in 2282. Ulpian's pupil Modestinus may be accounted the last of the great lawyers*. All too soon they became classical; their successors were looking backwards, not forwards. Of the work that had been done it were folly here to speak, but the law of a little town had become ecumenical law, law alike for cultured Greece and for wild Britain. And yet, though it had assimilated new matter and new ideas, it had always preserved its tough identity. In the year 200 six centuries and a half of definite legal history, if we measure only from the Twelve Tables, were consciously summed up in the living and growing body of the law.

Dangers lay ahead. We notice one in a humble quarter. Certain religious societies, congregations (ecclesiae) of non-conformists, have been developing law, internal law, with ominous rapidity. We have called it law, and law it was going to be, but as yet it was, if the phrase be tolerable, unlawful law, for these societies had an illegal, a criminal purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of ' benefit and burial societies' they would obtain some protection for their communal property4. But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (episcopus) of every congregation with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful5. Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire was winning a preeminence for itself and its overseer8. Long indeed would it be before

1 Kriiger, op. cit. 198; Karlowa, op. cit. i. 736. s Kruger, op. cit. 215; Karlowa, op. cit. i. 741. 8 Kruger, op. cit. 226; Karlowa, op. cit. i. 752.

4 Loning, op. cit. i. 195 ff.; Sohm, op. cit. 75. Loning asserts that in the intervals between the outbursts of persecution the Christian communities were legally recognized as collegia temtiorum, capable of holding property. Sohm denies this.

5 Excommunication gradually assumes its boycotting traits. The clergy were prohibited, while as yet the laity were not, from holding converse with the offender. Loning, op. cit. i. 264; Hinschius, op. cit. iv. 704.

6 Sohm, op. cit. 378 ff.; Loning, op. cit. i. 423 ff.


classical age of Roman law.

The beginnings of ecclesiastical law.

this overseer of a non-conformist congregation would, in the person of his successor, place his heel upon the neck of the prostrate Augustus by virtue of God-made law. This was not to be foreseen; but already a merely human jurisprudence was losing its interest. The intellectual force which some years earlier might have taken a side in the debate between Sabinians and Proculians now invented or refuted a christological heresy. Ulpian's priesthood1 was not priestly enough*.

The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility8; it was sharing the fate of art4. Its eyes were turned backwards to the departed great. The constitutions of the emperors now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made: the Codex Gregoriamis, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient8. The shifting eastward of the imperial centre and the tendency of the world to fall into two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germans were taking up their abode within the limit of the empire'. The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king7.

It is on a changed world that we look in the year 400. After one last flare of persecution (303), Christianity became a lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The 'confessor' of yesterday was the persecutor of to-day. Heathenry, it is true, died hard in the West; but already about 350 a pagan sacrifice was by the letter of the law a capital crime8. Before the end of

1 Dig. 1. 1. 1.

2 The moot question (Kriiger, op. cit. 203; Karlowa, op. oit. i. 739) whether the Tertullian who is the apologist of Christian sectaries is the Tertullian from whose works a few extracts appear in the Digest may serve as a mnemonic link between two ages.

1 Kruger, op. cit. 260; Karlowa, op. cit. i. 932.

4 Gregorovius, History of Borne (transl. Hamilton), i. 85.

5 Kruger, op. cit. 277ff.; Karlowa, op. cit. i. 941 ff. It is thought that the original edition of the Gregorianus was made about A.D. 295, that of the Hermogenianus between 314 and 324. But these dates are -uncertain. For their remains see Corpus luris Anteiustiniani.

• Brunner, op. cit. i. 32-39. 7 Ibid. 38. 8 Loning, op. cit. i. 44.

Cent. III.

Decline of



Cent. IV.

Church and State.

the century cruel statutes were being made against heretics of all sorts and kinds1. No sooner was the new faith lawful, than the state was compelled to take part in the multifarious quarrels of the Christians. Hardly had Constantine issued the edict of tolerance, than he was summoning the bishops to Aries (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa2. In the history of law, as well as in the history of dogma, the fourth century is the century of ecclesiastical councils. Into the debates of the spiritual parliaments of the empire* go whatever juristic ability, and whatever power of organization are left among mankind. The new siipernatural jurisprudence was finding another mode of utterance; the bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor4. In 380 Theodosius himself commanded that all the peoples which owned his sway should follow, not merely the religion that Christ had delivered to the world, but the religion that St Peter had delivered to the Romans5. For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled6. As arbitrators in purely secular disputes they were active; it is even probable that for a short while under Constantine one litigant might force his adversary unwillingly to seek the episcopal tribunal7. It was necessary for the state to protest that criminal jurisdiction was still in its hands8. Soon the church was demanding, and in the West it might successfully demand, independence of the state and even a dominance over the state: the church may command and the state must obey*. If from one point of view we see this as a triumph of anarchy, from another it appears as a

1 Loning, op. cit. i. 97-98, reckons 68 statutes from 57 years (380-438).

2 Hefele, Conciliengeschiohte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7.

3 Sohm, op. cit. 443: 'Das okumenische Koneil, dieReiehssynode...bedeutet ein geistliches Parlament des Kaisertums.'

4 Sohm, op. cit. 418. If a precise date may be fixed in a very gradual process, we may perhaps see the first exercise of legislative power in the decretal (A.D. 385) of Pope Siricius.

5 Cod. Theod. 16. 1. 2.

6 Loning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff.

7 Loning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1.

8 Loning, op. cit. i. 305; Hinschius, op. cit. iv. 794. * Loning, op. cit. i. 64-94.

triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a supernatural sort, in order that it may rule the world.

Among the gigantic events of the fifth century the issue of a statute-book seems small. Nevertheless, through the turmoil we see two statute-books, that of Theodosius II. and that of Euric the West Goth. The Theodosian Code was an official collection of imperial statutes beginning with those of Constantine I. It was issued in 438 with the consent of Valentinian III. who was reigning in the West. No perfect copy of it has reached us1. This by itself would tell a sad tale; but we remember how rapidly the empire was being torn in shreds. Already Britain was abandoned (407). We may doubt whether the statute-book of Theodosius ever reached our shores until it had been edited by Jacques Godefroi2. Indeed we may say that the fall of a loose stone in Britain brought the crumbling edifice to the ground3. Already before this code was published the hordes of Alans, Vandals and Sueves had swept across Gaul and Spain; already the Vandals were in Africa. Already Rome had been sacked by the West Goths; they were founding a kingdom in southern Gaul and were soon to have a statute-book of their own. Gaiseric was not far off, nor Attila. Also let us remember that this Theodosian Code was by no means well designed if it was to perpetuate the memory of Roman civil science in that stormy age. It was no ' code' in our modern sense of that term. It was only a more or less methodic collection of modern statutes. Also it contained many things that the barbarians had better not have read; bloody laws against heretics, for example.

We turn from it to the first monument of Germanic law: that has come down to us. It consists of some fragments of what must have been a large law-book published by Euric for bis West Goths, perhaps between 470 and 475*. Euric was, a conquering king; he ruled Spain and a large part of southern Gaul; he had cast off, so it is said, even the pretence of ruling

1 Kriiger, op. cit. 285ff.; Karlowa, op. cit. i. 944.

2 The Breviary of Alario is a different matter.

3 Bury, History of the Later Koman Empire, 142: 'And thus we may say that it was the loss or abandonment of Britain in 407 that led to the further loss of Spain and Africa.'

4 Zenmer, Leges Visigothorum Antiqniores, 1894; Brnnner, op. cit. i. 320; Schroder, op. cit. 230.

Cent. V.

The Theodosian Code.

Laws of Euric.

Cent. VI.

The century of Justinian.

The Lex Salica.

in the emperor's name. Nevertheless, his laws are not nearly so barbarous as our curiosity might wish them to be. These West Goths who had wandered across Europe were veneered by Roman civilization. It did them little good. Their later lawbooks, that of Reckessuinth (652-672), that of Erwig (682), that of Egica (687-701) are said to be verbose and futile imitations of Roman codes. But Euric's laws are sufficient to remind us that the order of date among these Leges Barbarorum is very different from the order of barbarity. Scandinavian laws that are not written until the thirteenth century will often give us what is more archaic than anything that comes from the Gaul of the fifth or the Britain of the seventh. And, on the other hand, the mention of Goths in Spain should remind us of those wondrous folk-wanderings and of their strange influence upon the legal map of Europe. The Saxon of England has a close cousin in the Lombard of Italy, and modern critics profess that they can see a specially near kinship between Spanish and Icelandic law1.

In legal history the sixth century is the century of Justinian. But, in the west of Europe this age appears as his, only if we take into account what was then a remote future. How powerless he was to legislate for many of the lands and races whence he drew his grandiose titles—Alamannicus, Gothicus, Francicus and the rest—we shall see if we inquire who else had been publishing laws. The barbarians had been writing down their customs. The barbarian kings had been issuing law-books for their Roman subjects. Books of ecclesiastical law, of conciliar and papal law, were being compiled8.

The discovery of fragments of the laws of Euric the West Goth has deprived the Lex Salica of its claim to be the oldest extant statement of Germanic custom. But if not the oldest, it is still very old; also it is rude and primitive*. It comes to us from the march between the fifth and the sixth centuries;

1 Ficker, Untersuchnngen zur Erbenfolge, 1891-5; Ficker, TJeber nahere Verwandtschaft zwischen gothisch-spanischem nnd^norwegiseh-ialandischem Becht (Mittheilungen des Instituts fur osterreichische Geschiohtsforechnng, 1888, ii. 456 ff.). These attempts to reconstruct the genealogy of the various Germanic systems are very interesting, if hazardous.

3 For a map of Europe at the time of Justinian's legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1.

8 Brnnner, op. cit. i. 292 ff.; Schroder, op. cit. 226 ff.; Esmein, op. cit. 102 ff.; Dahn, Die Kb'nige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880.

almost certainly from the victorious reign of Chlodwig (486-511). An attempt to fix its date more closely brings out one of its interesting traits. There is nothing distinctively heathen in it; but (and this makes it unique1) there is nothing distinctively Christian. If the Sicambrian has already bowed his neck to the catholic yoke, he is not yet actively destroying by his laws what he had formerly adored*. On the other hand, his kingdom seems to stretch south of the Loire, and he has looked for suggestions to the laws of the West Goths. The Lex Salica, though written in Latin, is very free from the Roman taint. It contains in the so-called Malberg glosses many old Frankish words, some of which, owing to mistranscription; are puzzles for the philological science of our own day. Like the other Germanic folk-laws, it consists largely of a tariff of offences and atonements; but a few precious chapters, every word of which has been a cause of learned strife, lift the curtain for a moment and allow us to watch the Frank as he litigates. We see more clearly here than elsewhere the formalism, the sacramental symbolism of ancient legal procedure. We have no more instructive document; and let us remember that, by virtue of the Norman Conquest, the Lex Salica is one of the ancestors of English law.

Whether in the days when Justinian was legislating, the Western or Ripuarian Franks had written law may not be certain; but it is thought that the main part of the Lex Ribuaria is older than 596*. Though there are notable variations, it is in part a modernized edition of the Salica, showing the influence of the clergy and of Roman law. On the other hand, there seems little doubt that the core of the Lex Bur-gwndionum was issued by King Gundobad (474-516) in the last years of the fifth century4.

Burgundians and West Goths were scattered among Roman provincials. They were East Germans; they had long been Christians, though addicted to the heresy of Arius. They could

1 However, there are some curious relics ol heathenry in the Lex Frisionum: Brunner, op. cit. i. 342.

1 Greg. Tnron. ii. 22 (ed. Omont, p. 60): 'Mitis depone oolla, Sicamber; adora quod incendisti, inoende quod adorasti.'

* Brunner, op. cit. i. 303ff.; Schroder, op. cit. 229; Esmein, op. cit. 107. Edited by Sohm in M. G.

4 Brunner, op. cit. i. 332ff.; Schroder, op. eit. 234; Esmein, op. cit. 108. Edited by v. Salis in M. G.

The Lex Sibuaria and Lex Burgun-dionum.

The Lex Romana Burgun-dionum.

say that they had Roman authority for their occupation of Roman soil. Aquitania Secunda had been made over to the West Goths; the Burgundians vanquished by Aetius had been deported to Savoy1. In their seizure of lands from the Roman possessores they had followed, though with modifications that were profitable to themselves, the Roman system of billeting barbarian soldiers2. There were many Romani as well as many barbari for whom their kings could legislate. Hence the Lex Romana Burgundionum and the Lex Romana Visigothorum. The former8 seems to be the law-book that Gundobad promised to his Roman subjects; he died in 516. Rules have been taken from the three Roman codices, from the current abridgements of imperial constitutions and from the works of Gaius and Paulus. Little that is good has been said of this book. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum*. Euric's son, Alaric II., published it in 506 as a statute-book; among the Romani of his realm it was to supplant all older books. It contained large excerpts from the Theodosian Codex, a few from the Gregoriamis and Hermogenianus, some post-Theodosian constitutions, some of the Sententiae of Paulus, one little scrap of Papinian and an abridged version of the Institutes of Gaius. The greater part of these texts was equipped with a running commentary (interpretatio) which attempted to give their upshot in a more intelligible form. It is thought now-a-days that this 'interpretation ' and the sorry version of Gaius represent, not Gothic barbarism, but degenerate Roman science. A time had come when lawyers could no longer understand their own old texts and were content with debased abridgements5.

The West Goths' power was declining. Hardly had Alaric issued his statute-book when he was slain in battle by the Franks. Soon the Visigothic became a Spanish kingdom. But it was not in Spain that the Breviarium made its permanent mark. There it was abrogated by Reckessuinth when he issued a code for all his subjects of every race6. On the other hand, it struck deep root in Gaul. It became the principal, if

1 Brunner, op. cit. i. 50-1. 2 Ibid. 64-7.

3 Krtiger, op. cit. 317; Brunner, op. cit. i. 354; Schroder, op. cit. 234. Edited by v. Satis in M. G.

4 Krfiger, op. cit. 309; Brunner, op. cit. i. 358. Edited by Hanel, 1849. 4 Karlowa, op. cit. i. 976. * See above, p. 6.

The Lex Romana Visigo-tharum.

Importance of the Breviary.

not the only, representative of Roman law in the expanse realm of the Franks. But even it was too bulky for men's needs. They made epitomes ©fit and epitomes of epitomes1.

Then, again, we must remember that while Tribonian was busy upon the Digest, the East Goths were still masters of Italy. We recall the event of 476; one emperor, Zeno at Byzantium, was to be enough. Odovacer had ruled as patrician and king. He had been conquered by the East Goths. The great Theodoric had reigned for more than thirty years (493-526); he had tried to fuse Italians and Goths into one nation; he had issued a considerable body of law, the Edictum Theodorici, for the more part of a criminal kind*.

Lastly, it must not escape us that about the year 500 there was in Rome a monk of Scythian birth who was labouring upon the foundations of the Corpus luris Canoniei. He called himself Dionysius Exiguus. He was an expert chronologist and constructed the Dionysian cycle. He was collecting and translating the canons of eastern councils; he was collecting also some of the letters (decretal letters they will be called) that had been issued by the popes from Siricius onwards (384-498)*, This Collectio Dionysiana made its way in the West. Some version of it may have been the book of canons which our Archbishop Theodore produced at the Council of Hertford in 673*. A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774°. It helped to spread abroad the notion that the popes can declare, even if they can not make, law for the universal church, and thus to contract the sphere of secular jurisprudence.

In 528 Justinian began the work which gives him his fame in legal history; in 534, though there were novel constitutions to come from him, it was finished. Valuable as the Code of imperial statutes might be, valuable as might be the modernized and imperial edition of an excellent but ancient school-book,

1 The epitomes vill be found in Hanel's edition, Lex Bomana Visigothorum, 1849.

> Brnnner, op. cit. i. 365; Karlowa, op. cit. i. 947ff. Edited by Bluhme in M. G.

» Maassen, op. cit. i. 422ff..; Tardif, op. cit. 110. Printed in Migne, Patrologia, vol. 67.

* Haddan and Stubbs, Councils, iii. 119. See, however, the remarks of Mr C. H. Turner, E. H. B. i*. 727.

9 Maassen, op. cit. i. 441.


Edictnm Theodorici.


Collectio Dionysiana,.

Justinian's books.

the main work that he did for the coining centuries lies in the Digest. We are told now-a-days that in the Orient the classical jurisprudence had taken a new lease of life, especially in the school at Berytus1. We are told that there is something of a renaissance, something even of an antiquarian revival visible in the pages of the Digest, a desire to go back from vulgar practice to classical text, also a desire to display an erudition that is not always very deep. Great conqueror, great builder, great theologian, great law-giver, Justinian would also be a great master of legal science and legal history. The narrow escape of his Digest from oblivion seems to tell us that, but for his exertions, very little of the ancient treasure of wisdom would have reached modern times: and a world without the Digest would not have been the world that we know. Let us, however, remember the retrospective character of the book. The ius, the unenacted law, ceased to grow three hundred years ago. In time Justinian stands as far from the jurists whose opinions he collects as we stand from Coke or even from Fitzherbert.

Laws have need of arms: Justinian knew it well. Much depended upon the fortunes of a war. We recall from the Institutes the boast that Africa has been reclaimed. Little was at stake there, for Africa was doomed to the Saracens; nor could transient success in Spain secure a western home for the law books of Byzantium2. All was at stake in Italy. The struggle with the East Goths was raging; Rome was captured and recaptured. At length the emperor was victorious (552), the Goths were exterminated or expelled; we hear of them no more. Justinian could now enforce his laws in Italy and this he did by the pragmatic sanction pro petitions Vigilii (554)s. Fourteen years were to elapse and then the Lombard hordes under Alboin would be pouring down upon an exhausted and depopulated land. Those fourteen years are critical in legal history; they suffer Justinian's books to obtain a lodgement in the West. The occidental world has paid heavily for Code and Digest in the destruction of the Gothic kingdom, in the temporal power of the papacy, and in an Italy never united until our own day; but perhaps the price was not too high. Be that as it may, the coincidence is memorable. The Roman

1 Kriiger, op. cit. 819. * Conrat, op. cit. i. 32.

s Kriiger, op. cit. 354; Karlowa, op. cit. i. 938; Hodgkin, Italy and her Invaders, vi. 519.

Justinian and Italy.

empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her heathen jurisprudence, now ' enucleated' (as Justinian says) in a small compass, and then loses for ever the power of legislating for the West. True that there is the dwindling exarchate in Italy; true that the year 800 is still far off; true that one of Justinian's suc-. cessors, Constantine IV., will pay Rome a twelve days' visit (663) and rob it of ornaments that Vandals have spared1; but with what we must call Graeco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise, the West, if we except some districts of southern Italy8, has no concern. Two halves of the world were drifting apart, were becoming ignorant of each other's language, intolerant of each other's theology. He who was to be the true lord of Rome, if he loathed the Lombard, loved not the emperor. Justinian had taught Pope Vigilius, the Vigilius of the pragmatic sanction, that in the Byzantine system the church must be a department of the state3. The bishop of Rome did not mean to be the head of a department.

During some centuries Pope Gregory the Great (590-604) is one of the very few westerns whose use of the Digest can be proved*. He sent Augustin to England. Then ' in Augustin's day,' about the year 600, ^Ethelbert of Kent set in writing the dooms of his folk ' in Roman fashion5.' Not improbably he had heard of Justinian's exploits; but the dooms, though already they are protecting with heavy lot the property of God, priests and bishops, are barbarous enough. They are also, unless discoveries have yet to be made, the first Germanic laws that were written in a Germanic tongue. In many instances the desire to have written laws appears so soon as a barbarous race is brought into contact with Rome'. The acceptance of the new religion must have revolutionary consequences in the

1 Gregorovins, History of Borne (transl. Hamilton), ii. 153 ff.; Oman, Dark Ages, 337, 245.

a For Byzantine law in southern Italy gee Conrat, op. cit. i. 49.

s Hodgkin, Italy and her Invaders, iv. 671 ff.: ' The Sorrows of Vigilius.'

4 Conrat, op. cit. i. 8.

* Bede, Hist. Eccl., lib. 2, c. 5 (ed. Hummer, i. 90): 'inxta exempla Romanorum.' Bede himself (Opera, ed. Giles, vol. vi. p. 321) had read of Justinian's Codex; but what he says of it seems to prove that he had never seen it: Conrat, op. cit. i. 99.

' Brunner, op. cit. i. 283.

Laws of .ffithelbert.

world of law, for it is likely that heretofore the traditional customs, even if they have not been conceived as instituted by gods who are now becoming devils, have been conceived as essentially unalterable. Law has been the old; new law has been a contradiction in terms. And now about certain matters there must be new law1. What is more,' the example of the Romans' shows that new law can be made by the issue of-commands. Statute appears as the civilized form of law. Thus a fermentation begins and the result is bewildering. New resolves are mixed up with statements of old custom in these Leges Barbarorum.

The century which ends in 700 sees some additions made to the Kentish laws by Hlothser and Eadric, and some others made by Wihtrsed; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex*. It also sees the beginning of written law among the Lombards; in 643 Rothari published his edict8; it is accounted to be one of the best statements of ancient German usages. A little later the Swabians have their Lex Alamannorum', and the Bavarians their Lex Baiuwariorum*. It is only in the Karo-lingian age that written law appears among the northern and eastern folks of Germany, the Frisians, the Saxons, the Angli and Wami of Thuringia, the Franks of Hamaland". To a much later time must we regretfully look for the oldest monuments of Scandinavian law7. Only two of our' heptarchic'

1 The oldest Germanic word that answers to our law seems to be that which appears as A. -S. A. This word lives on in our Eng. ay or aye (= ever, from all time). It is said to be cognate to Lat. aevum. See Brunner, op. cit. i. 109; Schroder, op. cit. 222; Schmid, Gesetze, 524; Oxf. Eng. Diet. s. v. ay. For lagu, see Brunner, loc. cit.; Schmid, 621. Hlothier and Eadric increase the « of the Kentish folk by their dooms.

2 Whether we have Ine's code or only an Alfredian recension of it is a difficult question, lately discussed by Turk, Legal Code of JElfred (Halle, 1893) p. 42.

3 Brunner, op. cit. i. 368; Schroder, op. cit. 236. Edited by Bluhme in M. G. < Brunner, op. cit. i. 308; Schroder, op. cit. 238. Edited by Lehmann in

M. G. There are fragments of a Pactus Alamannorum from cire. 600. The Lex is supposed to come from 717-9.

5 Brunner, op. cit. i. 313; Schroder, op. cit. 239. Edited by Merkel in M. G. This is now ascribed to the years 739-48.

« Brunner, op. cit. i. 340ff.; Schroder, op. cit. 240.S. Edited by v. Eicht-hofen and Sohm in M. G.

7 K. Maurer, Ueberblick fiber die Geschichte der nordgermanischen Bechts-quellen in v. Holtzendorff, Encyklopadie.

Centuries VII and Vill.

Germanic laws.

kingdoms leave us law, Kent and Wessex, though we have reason to believe that Offa the Mercian (ob. 796) legislated1. Even Northumbria, Bede's Northumbria, which was a bright spot in a dark world, bequeaths no dooms. The impulse of Roman example soon wore out. When once a race has got its Lex, its aspirations seem to be satisfied. About the year 900 Alfred speaks as though Offa (circ. 800), Ine (circ. 700), JSthelbert (circ. 600) had left him little to do. Rarely upon the mainland was there any authoritative revision of the ancient Leges, though transcribers sometimes modified them to suit changed times, and by so doing have perplexed the task of modern historians. Only among the Lombards, who from the first, despite their savagery, seem to show something that is like a genius for law', was there steadily progressive legislation. Grimwald (668), Liutprand (713-35), Ratchis (746) and Aistulf (755) added to the edict of Rothari. Not by abandoning, but by developing their own ancient rules, the Lombards were training themselves to be the interpreters and in some sort the heirs of the Roman pruderttes.

As the Frankish realm expanded, there expanded with it a wonderful' system of personal laws*.' It was a system of racial laws. The Lex Salica, for example, was not the law of a district, it was the law of a race. The Swabian, wherever he might be, lived under his Alamannic law, or, as an expressive phrase tells us, he lived Alamannic law (legem vivere). So Roman law was the law of the Romani. In a famous, if exaggerated sentence, Bishop Agobard of Lyons has said that often five men would be walking or sitting together and each of them would own a different law4. We are now taught that this principle is not primitively Germanic. Indeed in England, where there were no Romani, it never came to the front, and, for example,' the Danelaw' very rapidly became the name for a tract of land". But in the kingdoms founded by Goths and Burgundians the intruding Germans were only a small part of

1 Alfred, Introduction, 49, § 9 (Liebermann, Gesetze, p. 46). ! Brunner, op. cit. i. 370; Schroder, op. cit. 235.

3 Brunner, op. cit. i. 259; Schroder, op. cit. 225; Esmein, op. cit. 57.

4 Agobardi Opera, Migne, Patrol, vol. 104, col. 116: ' Nam plerumqne con-tingit nt simul eant ant sedeant quinque homines et nullus eorum communem legem cum altero habeat.'

* Stnbbs, Constit. Hist. i. 216. See, however, Dahn, Ko'nige der Germanen, Tii. (3), pp. 1 ft.

System of



a population, the bulk of which was Gallo-Roman, and the barbarians, at least in show, had made their entry as subjects or allies of the emperor. It was natural then that the Romani should live their old law, and, as we have seen1, their rulers were at pains to supply them with books of Roman law suitable to an age which would bear none but the shortest of law-books. It is doubtful whether the Salian Franks made from the first any similar concession to the provincials whom they subdued; but, as they spread over Gaul, always retaining their own Lex Salica, they allowed to the conquered races the right that they claimed for themselves. Their victorious career gave the principle an always wider scope. At length they carried it with them into Italy and into the very city of Rome. It would seem that among the Lombards, the Romani were suffered to settle their own disputes by their own rules, but Lombard law prevailed between Roman and Lombard. However, when Charles the Great vanquished Desiderius and made himself king of the Lombards, the Frankish system of personal law found a new field. A few years afterwards (800) a novel Roman empire was established. One of the immediate results of this many-sided event was that Roman law ceased to be the territorial law of any part of the lands that had become subject to the so-called Roman Emperor. Even in Rome it was reduced to the level of a personal or racial law, while in northern Italy there were many Swabians who lived Alamannic, and Franks who lived Salic or Ripuarian law, besides the Lombards2. In the future the renovatio imperil was to have a very different effect. If the Ottos and Henries were the successors of Augustus, Constantine and Justinian, then Code and Digest were Kaiserrecht, statute law for the renewed empire. But some centuries were to pass before this theory would be evolved, and yet other centuries before it would practically mould the law of Germany. Meanwhile Roman law was in Rome itself only the personal law of the Romani.

A system of personal laws implies rules by which a ' conflict of laws' may be appeased, and of late years many of the international or intertribal rules of the Frankish realm have been recovered3. We may see, for example, that the law of the slain, not that of the slayer, fixes the amount of the wergild, and that the law of the grantor prescribes the ceremonies with which land 1 See above, p. 8. 2 Brunner, op. cit. i. 260. 3 Ibid. 261 ff.

The vulgar



must be conveyed. We see that legitimate children take their father's, bastards their mother's law. We see also that the churches, except some which are of royal foundation, are deemed to live Roman law, and in Italy, though not in Frankland, the rule that the individual cleric lives Roman law seems to have been gradually adopted1. This gave the clergy some interest in the old system. But German and Roman law were making advances towards each other. If the one was becoming civilized, the other had been sadly barbarized or rather vulgarized. North of the Alps the current Roman law regarded Alaric's Lex as its chief authority. In Italy Justinian's Institutes and Code and Julian's epitome of the Novels were known, and someone may sometimes have opened a copy of the Digest. But everywhere the law administered among the Romani seems to have been in the main a traditional, customary law which paid little heed to written texts. It was, we are told, ein romisches Vidgarreckt, which stood to pure Roman law in the same relation as that in which the vulgar Latin or Romance that people talked stood to the literary language2. Not a few of the rules and ideas which were generally prevalent in the West had their source in this low Roman law. In it starts the history of modern conveyancing. The Anglo-Saxon ' land-book' is of Italian origin*. That England produces no formulary books, no books of ' precedents in conveyancing,' such as those which in considerable numbers were compiled in Frankland4, is one of the many signs that even this low Roman law had no home here; but neither did our forefathers talk low Latin.

In the British India of to-day we may see and on a grand scale what might well be called a system of personal laws, of racial laws. If we compared it with the Frankish, one -picturesque element would be wanting. Suppose that among the native races there was one possessed of an old law-book, too good for it, too good for us, which gradually, as men studied it afresh, would begin to tell of a very ancient but eternally modem civilization and of a skilful jurisprudence which the lawyers of the ruling race would some day make their model. This romance of history will not repeat itself.

1 Brunner, op. cit. i. 269; Loning, op. cit. ii. 284. 3 Brnnner, op. cit. i. 255.

* Brunaer, Zur Kechtsgesehichte der romischen und germanischen Urkunde, i. 187.

4 Brunner, D. B. G. i. 401; Schroder, op. cit. 254, Edited in M. G. by Zeumer; also by E. de Boziere, Becueil general deg formules.

The latent Digest.

During the golden age of the Frankish supremacy, the age which closely centres round the year 800, there was a good deal of definite legislation : much more than there was to be in the bad time that was coming. The king or emperor issued capitularies (capitula)1. Within a sphere which can not be readily defined he exercised a power of laying commands upon all his subjects, and so of making new territorial law for his whole realm or any part thereof; but in principle any change in the law of one of the folks would require that folk's consent. A superstructure of capitularies might be reared, but the Lex of a folk was not easily alterable. In 827 Ansegis, Abbot of St Wandrille, collected some of the capitularies into four books8. His work seems to have found general acceptance, though it shows that many capitularies were speedily forgotten and that much of the Karolingian legislation had failed to produce a permanent effect. Those fratricidal wars were beginning. The legal products which are to be characteristic of this unhappy age are not genuine laws; they are the forged capitularies of Benedict the Levite and the false decretals of the Pseudo-Isidore.

Slowly and by obscure processes a great mass of ecclesiastical law had been forming itself. It rolled, if we may so speak, from country to country and took up new matter into itself as it went, for bishop borrowed from bishop and transcriber from transcriber. Oriental, African, Spanish, Gallican canons were collected into the same book and the decretal letters of later were added to those of earlier popes. Of the Dionysiana we have already spoken. Another celebrated collection seems to have taken shape in the Spain of the seventh century; it has been known as the Hispana or Isidoriana3, for without sufficient warrant it has been attributed to that St Isidore of Seville (ob. 636), whose Origines4 served as an encyclopaedia of jurisprudence and all other sciences. The Hispana made its way into France, and

1 Brunner, op. cit. i. 374; Schroder, op. cit. 247; Esmein, op. cit. 116. Edited in M. G. by Boretius and Krause; previously by Pertz.

2 Brunner, op. cit. i. 382; Schroder, op. cit. 251; Esmein, op. cit. 117.

8 Maansen, op. cit. i. 667 ft.; Tardif, op. cit. 117. Printed in Migne, Patrol, vol. 84.

4 For the Boman law of the Origines, see Conrat, op. cit. i. 150. At first or second hand this work "was used by the author of our Leges Henrici. That the learned Isidore knew nothing of Justinian's books seems to be proved, and this shows that they were not current in Spain.

The capitularies.

Growth of Canon law.

it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.

Then out of the depth of the ninth century emerged a book which was to give law to mankind for a long time to come. Its core was the Hispana; but into it there had been foisted besides other forgeries, some sixty decretals professing to come from the very earliest successors of St Peter. The compiler called himself Isidorus Mercator; he seems to have tried to personate Isidore of Seville. Many guesses have been made as to his name and time and home. It seems certain that he did his work in Frankland, and near the middle of the ninth century. He has been sought as far west as le Mans, but suspicion hangs thickest over the church of Reims. The false decretals are elaborate mosaics made up out of phrases from the bible, the fathers, genuine canons, genuine decretals, the West Goth's Roman law-book; but all these materials, wherever collected, are so arranged as to establish a few great principles: the grandeur and superhuman origin of ecclesiastical power, the sacrosanctity of the persons and the property of bishops, and, though this is not so prominent, the supremacy of the bishop of Rome. Episcopal rights are to be maintained against the chorepiscopi, against the metropolitans, and against the secular power. Above all (and this is the burden of the song), no accusation can be brought against a bishop so long as he is despoiled of his see: Spoliatus episcopus ante omnia debet restitui.

Closely connected with this fraud was another. Some one who called himself a deacon of the church of Mainz and gave his name as Benedict, added to the four books of capitularies, which Ansegis had published, three other books containing would-be, but false capitularies, which had the same bent as the decretals concocted by the Pseudo-Isidore. These are not the only, but they are the most famous manifestations of the lying spirit which had seized the Frankish clergy. The Isidorian forgeries were soon accepted at Rome. The popes profited by documents which -taught that ever since the apostolic age the bishops of Rome had been declaring, or even making, law for the universal church. On this rock or on this sand a lofty edifice was reared1.

1 The Decretales Pseudo-Isidorianae were edited by Hiuschius in 1863. See also Tardif, op. cit. 133 ff.; Conrat, op. cit. i. 299; Brunner, op. cit. i. 384.

Centuries DC andX.

The false Isidore.

The forged capitularies.

And now for the greater part of the Continent comes the time when ecclesiastical law is the only sort of law that is visibly growing. The stream of capitularies ceased to flow; there was none to legislate; the Frankish monarchy was going to wreck and ruin; feudalism was triumphant. Sacerdotalism also was triumphant, and its victories were closely connected with those of feudalism. The clergy had long been striving to place themselves beyond the reach of the state's tribunals. The dramatic struggle between Henry II. and Becket has a long Frankish prologue1. Some concessions had been won from the Merovingians; but still Charles the Great had been supreme over all persons and in all causes. Though his realm fell asunder, the churches were united, and united by a principle that claimed a divine origin. They were rapidly evolving law which was in course of time to be the written law of an universal and theocratic monarchy. The mass, now swollen by the Isidorian forgeries, still rolled from diocese to diocese, taking up new matter into itself. It became always more lawyerly in form and texture as it appropriated sentences from the Roman law-books and made itself the law of the only courts to which the clergy would yield obedience. Nor was it above borrowing from Germanic law, for thence it took its probative processes, the oath with oath-helpers and the ordeal or judgment of God. Among the many compilers of manuals of church law three are especially famous: Regino, abbot of Pram (906-915"), Burchard, bishop of Worms (1012-1023)', and Ivo, bishop of Chartres (ob. 1117)4. They and many others prepared the way for Gratian, the maker of the church's Digest, and events were deciding that the church should also have a Code and abundant Novels. In an evil day for themselves the German kings took the papacy from the mire into which it had fallen, and soon the work of issuing decretals was resumed with new vigour. At the date of the Norman Conquest the flow of these edicts was becoming rapid.

Historians of French and German law find that a well-marked period is thrust upon them. The age of the folk-laws

1 Hinschius, op. cit. iv. 849 ff.

2 Tardif, op. cit. 162. Printed in Migne, Patrol, vol. 132; also edited by Wasserschleben, 1840.

8 Ibid. 164. Printed in Migne, Patrol, vol. 140.

4 Ibid. 170. See Fournier, Yves de Chartres, Paris, 1898.

Church and State.




and the capitularies, 'the Frankish time,' they can restore. Much indeed is dark and disputable; but much has been made plain during the last thirty years by their unwearying labour. There is no lack of materials, and the materials are of a strictly legal kind: laws and statements of law. This done, they are compelled rapidly to pass through several centuries to a new point of view. They take their stand in the thirteenth among law-books which have the treatises of Glanvill and Bracton for their English equivalents. It is then a new world that they paint for us. To connect this new order with the old, to make the world of 'the classical feudalism" grow out of the world of the folk-laws is a task which is being slowly accomplished by skilful hands; but it is difficult, for, though materials are not wanting, they are not of a strictly legal kind; they are not laws, nor law-books, nor statements of law. The intervening, the dark age, has been called' the diplomatic age,' whereby is meant that its law must be hazardously inferred from diplomata, from charters, from conveyances, from privileges accorded to particular churches or particular towns. No one legislates. The French historian will tell us that the last capitularies which bear the character of general laws are issued by Carlotnan II. in 884, and that the first legislative ordonnance is issued by Louis VIL in 1155*. Germany and France were coming to the birth and the agony was long. Long it was questionable whether the western world would not be overwhelmed by Northmen and Saracens and Magyars; perhaps we are right in saying that it was saved by feudalism8. Meanwhile the innermost texture of human society was being changed; local customs were issuing from and then consuming the old racial laws.

Strangely different, at least upon its surface, is our English story. The age of the capitularies (for such we well might call it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have

1 We borrow la f£odalitS clatiique from M. Flach : Leg origines de 1'ancienne France, ii 551.

> Esmein, op. cit. 487-8; Viollet, op. cit. 152. Schroder, op. cit. 624: 'Vom 40. bis 12. Jahrhundert rnhte die Gesetzgebnng fast ganz...Es war die Zeit der Alleinherrschaft des Oewohnheitsrechtes.'

* Oman, The Dark Ages, 511.

legislation in England.

heard that in the day of Mercia's greatness Offa (ob. 796), influenced perhaps by the example of Charles the Great, had published laws. These we have lost, but we have no reason to fear that we have lost much else. Even Egbert did not legislate. The silence was broken by Alfred (871—901), and then, for a century and a half we have laws from almost every king: from Edward, ^Ethelstan, Edmund, Edgar, ^Ethelred and Cnut. The age of the capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I. take up the tale1. Whether in the days of the Confessor, whom a perverse, though explicable, tradition honoured as a preeminent law-giver, we were not on the verge of an age without legislation, an age which would but too faithfully reproduce some bad features of the Frankish decadence, is a question that is not easily answered. Howbeit, Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code. If he is not the greatest legislator of the eleventh century, we must go as far as Barcelona to find his peer*. He had been to Rome; he had seen an emperor crowned by a pope; but it was not outside England that he learnt to legislate. He followed a fashion set by Alfred. We might easily exaggerate both the amount of new matter that was contained in these English capitularies and the amount of information that they give us; but the mere fact that Alfred sets, and that his successors (and among them the conquering Dane), maintain, a fashion of legislating is of great importance. The Norman subdues, or, as he says, inherits a kingdom in which a king is expected to publish laws.

Were we to discuss the causes of this early divergence of English from continental history we might wander far. In the first place, we should have to remember the small size, the plain surface, the definite boundary of our country. This

1 As to the close likeness between the English dooms and the Frankish capitularies, see Stubbs, Const. Hist. i. 223. We might easily suppose direct imitation, were it not that much of the Karolingian system was in ruins before Alfred began his work.

a The Ueatici Barchinonensis Patriae (printed by Girand, Histoire du droit francais, ii. 465 ff.) are ascribed to Raymond Berengar I. and to the year 1068 or thereabouts. But how large a part of them really comes from him is a disputable question. See Conrat, op. cit. i. 467; Picker, Mittheilungen des Instituts fur osterreichische Geschichtsforschung, 1888, ii. p. 236.

England and the continent.

thought indeed must often recur to us in the course of our work: England is small: it can be governed by uniform law: it seems to invite general legislation. Also we should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned among brothers and cousins. Moreover we might find ourselves saying that the Northmen were so victorious in their assaults on our island that they, did less harm here than elsewhere. In the end it was better that they should conquer a tract, settle in villages and call the lands by their own names, than that the state should go to pieces in the act of repelling their inroads. Then, again, it would not escape us that a close and confused union between church and state prevented the development of a body of distinctively ecclesiastical law which would stand in contrast with, if not in opposition to, the law of the land1. Suph power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine*; indeed JSthelred's laws are apt to become mere sermons preached to a disobedient folk. However we are here but registering the fact that the age of capitularies, which was begun by Alfred, does not end. The English king, be he weak like ./Ethelred or strong like Cnut, is expected to publish laws.

But Italy was to be for a while the focus of the whole world's legal history. For one thing, the thread of legislation was never quite broken there. Capitularies or statutes which enact territorial law came from Karolingian emperors and from Karolingian kings of Italy, and then from the Ottos and later German kings. But what is more important is that the old Lombard law showed a marvellous vitality and a capacity of being elaborated into a reasonable and progressive system. Lombardy was the country in which the principle of personal law struck its deepest roots. Besides Lombards and Romani there were many Franks and Swabians who transmitted their law from father to son. It was long before the old question Qua lege vivis? lost its importance. The 'conflict of laws' seems to have favoured the growth of a mediating and

1 Stubbs, Const. Hist. i. 263: 'There are few if any records of councils distinctly ecclesiastical held during the tenth century in England.'

2 There seem to be traces of the Frankish forgeries in the Worcester book described by Miss Boieson, E. H. E. x. 7123. English ecclesiastics were borrowing and it is unlikely that they escaped contamination.


ThePavian law-school,

instructed jurisprudence. Then at Pa via in the first half of the eleventh century a law-school had arisen. In it men were endeavouring to systematize by gloss and comment the ancient Lombard statutes of Rothari and his successors. The heads of the school were often employed as royal justices (indices palatini); their names and their opinions were treasured by admiring pupils. From out this school came Lanfranc. Thus a body of law, which though it had from the first been more neatly expressed than, was in its substance strikingly like, our own old dooms, became the subject of continuous and professional study. The influence of reviving Roman law is not to be ignored. These Lombardists knew their Institutes, and, before the eleventh century was at an end, the doctrine that Roman law was a subsidiary common law for all mankind (lex omnium generalis) was gaining ground among them; but still the law upon which they worked was the old Germanic law of the Lombard race. Pavia handed the lamp to Bologna, Lombardy to the Romagna1.

As to the more or less that was known of the ancient Roman texts there has been learned and lively controversy in these last years*. But, even if we grant to the champions of continuity all that they ask, the sum will seem small until the eleventh century is reached. That large masses of men in Italy and southern France had Roman law for their personal law is beyond doubt. Also it is certain that Justinian's Institutes and Code and Julian's Epitome of the Novels were beginning to spread outside Italy. There are questions still to be solved about the date and domicile of various small collections of Roman rules which some regard as older than or uninfluenced by the work of the Bolognese glossators. One critic discovers

1 Boretins, Preface to edition of Liber legis Langobardornm, in M. G.; Brunner, op. cit. i. 387 ff.; Ficker, Forschungen zur Beichs- n. Rechtsgesehichte Italiens, iii. 44ff., 139 ff.; Conrat, op. cit. i. 393ff.

2 It is well gummed np for English readers by Bashdall, Universities of Europe, i. 89 ff. The chief advocate of a maximum of knowledge has been Dr Hermann Fitting in Jnristiche Schriften des friiheren Mittelalters, 1876, Die Anfange der Eeehtsschule zu Bologna, 1888, and elsewhere. He has recently edited a Summa Codicis (1894) and some Qnaestiones de inris subtilitatibus, both of which he ascribes to Irneriua. See also Pescatore, Die Glossen des Irnerius, 1888; Mommsen, Preface to two-volume edition of the Digest; Flach, Etudes critiques stir 1'histoire dn droit romain, 1890; Besta, L'Opera d'Irnerio, 1896; Ficker, op. cit. vol. iii. and Conrat, op. cit. passim.

The new birth of Koman law.

evanescent traces of a school of law at Rome or at Ravenna which others can not see. The current instruction of boys in grammar and rhetoric involved some discussion of legal terms. Definitions of lex and ius and so forth were learnt by heart; little catechisms were compiled1; but of anything that we should dare to call an education in Roman law there are few, if any, indisputable signs before the school of Bologna appears in the second half of the eleventh century. As to the Digest, during some four hundred years its mere existence seems to have been almost unknown. It barely escaped with its life. When men spoke of 'the pandects' they meant the bible2. The romantic fable of the capture of an unique copy at the siege of Amalfi in 1135 has long been disproved; but, if some small fragments be neglected, all the extant manuscripts are said to derive from two copies, one now lost, the other the famous Florentina written, we are told, by Greek hands in the sixth or seventh century. In the eleventh the revival began. In 1038 Conrad II., the emperor whom Cnut saw crowned, ordained that Roman law should be once more the territorial law of the city of Rome8. In 1076 the Digest was cited in the judgment of a Tuscan court4. Then, about 1100, Irnerius was teaching at Bologna5.

Here, again, there is room for controversy. It is said that he was not self-taught; it is said that neither his theme nor his method was quite new; it is said that he had a predecessor at Bologna, one Pepo by name. All this may be true and is probable enough: and yet undoubtedly he was soon regarded as the founder of the school which was teaching Roman law to an intently listening world. We with our many sciences can hardly comprehend the size of this event. The monarchy of theology over the intellectual world was disputed. A lay

1 See E. J. Tardif, Extraits et abreges juridiqnes des etymologies d'Isidore de Seville, 1896.

1 Conrat, op. cit. i. 65.

* M. G. Leges, ii. 40; Conrat, op. cit. i. 62.

4 Ficker, Forschungen, iii. 126; iv. 99; Conrat, op. cit. 67. Apparently the most industrious research has failed to prove that between 603 and 1076 any one cited the Digest. The bare fact that Justinian had issned such a book seems to have vanished from memory. Conrat, op. cit. i. 69.

5 In dated documents Irnerius (his name seems to have really been Warnerius, Guarnerius) appears in 1113 and disappears in 1125. The University of Bologna kept 1888 as its octocentenary.




science claimed its rights, its share of men's attention. It was.a science of civil life to be found in the human, heathen Digest1.

A new force had begun to play and sooner or later every body of law in western Europe felt it. The challenged church answered with Gratian's Decretum (circ. 1139) and the Decretals of Gregory IX. (1234). The canonist emulated the civilian and for a long while maintained in the field of jurisprudence what seemed to be an equal combat. Unequal it was in truth. The Decretum is sad stuff when set beside the Digest and the study of Roman law never dies. When it seems to be dying it always returns to the texts and is born anew. It is not for us here to speak of its new birth in the France of the sixteenth or in the Germany of the nineteenth century; but its new birth in the Italy of the eleventh and twelfth concerns us nearly. Transient indeed but all-important was the influence of the Bologna of Irnerius and of Gratian upon the form, and therefore upon the substance, of our English law. The theoretical continuity or ' translation' of the empire which secured for Justinian's books their hold upon Italy, and, though after a wide interval, upon Germany also, counted for little in France or in England. In England, again, there was no mass of Romani, of people who all along had been living Roman law of a degenerate and vulgar sort and who would in course of time be taught to look for their law to Code and Digest. Also there was no need in England for that reconstitution de I'unitt nationale which fills a large space in schemes of French history, and in which, for good and ill, the Roman texts gave their powerful aid to the centripetal and monarchical forces. In England the new learning found a small, homogeneous, well conquered, much governed kingdom, a strong, a legislating kingship. It came to us soon; it taught us much; and then there was healthy resistance to foreign dogma. But all this we shall see in the sequel.

1 Esmein, op. cit. 347: ' XJne science nouvelle naquit, independants et laique, la science de la societe civile, telle que 1'avaient degagee lea Remains, et qui pouvait passer pour le chef-d'oeuvre de la sagesse humaine.,.11 en resnlta qu'A c6te du theologien se placa le legiste qui avait, comme lui, sea principes et sea textes, et qui lui dispnta la direction des esprits avides de savoir." It is only by slow degrees that the Digest comes by its rights. Throughout the middle ages the Code appears, as Justinian intended that it should appear, as the prominent book: it contains the new law. See Fitting, Preface to the Sumraa of Irnerius.

Influence of the Bolognese jurisprudence.



THIS book is concerned with Anglo-Saxon legal antiquities, but only so far as they are connected with, and tend to throw light upon, the subsequent history of the laws of England, and the scope of the present chapter is limited by that purpose. Much of our information about the Anglo-Saxon laws and customs, especially as regards landholding, is so fragmentary and obscure that the only hope of understanding it is to work back to it from the fuller evidence of Norman and even later times. It would be outside our undertaking to deal with problems of this kind1.

The habit of preserving some written record of all affairs of importance is a modern one in the north and west of Europe. But it is so prevalent and so much bound up with our daily habits that we have almost forgotten how much 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 continuing surprise. This brings with it a temptation of some practical danger, that of overrating both the trustworthiness of written documents and the importance of the matters they deal with as compared with other things for which the direct authority of documents 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

1 See Maitland, Domesday Book and Beyond, Cambridge, 1897.

Scope of



Imperfection of written records of early Germanic law.

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 evidence, whether full or scanty, is clear so far as it goes. Arms, ornaments, miniatures, tell their own story. But written 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 can not expect, then, that the extant collections of Anglo-Saxon laws should give us anything 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 Rome1.

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

1 The A.-S. laws were first printed by Lambard, Archaionomia, 1568. A second edition of his work was published by Whelock, Archaionomia, Cambridge, 1644.—This was followed in 1721 by Wilkins, Leges Anglo-Saxonioae.—In 1840 the Ancient Laws and Institutes of England were edited for the Record Commission by Price and Thorpe.—This was followed by Beinhold Schmid, Gesetze der Angelsachsen, 2nd ed. Leipzig, 1858, which superseded a first and incomplete edition of 1832.—A new edition by Dr F. Liebermann is in course of publication.— For detailed discussion see, besides Kemble's well-known works, the Glossary in Schmid's edition—Eonrad Maurer, Angelsachsische Kecht a verbal tnisse, in Kritische Ueberschau der deutschen Gesetzgebung, vol. i. ff. Munich, 1853, ff.— Essays in Anglo-Saxon Laws (Adams, Lodge, Young, Laughlin), 1876.—Full use has been made of the A.-S. documents by historians of German law, Brunner, Schroder, v. Amira and others.—For the Scandinavian side of the story, see Steenstrup, Danelag, Copenhagen, 1882.

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.

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 in the first place the considerable series of laws and ordinances of Saxon and English princes, beginning with those of JSthelbert of Kent, well known to general history as Augustine's convert, which are of about the end of the sixth century. The laws of Cnut may be said to close the list. Then from the century which follows the Norman Conquest we have various attempts to state the old English law. These belong 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. Apocryphal 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

1 Schmid, Gesetze, p. 371. The Gerefa, which seems to be a continuation of this tract, was published by Dr Liebermann, in Anglia, ix. 251, and by Dr Cunningham, Growth of English Industry, ed. 3, vol. i. p. 571 ff.

Anglo-Saxon dooms and cnstumals.

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 including them, together with genuine legislation, under the 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 a much later period of English law. For the more part they are not even false history; they are speculation or satire.

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 intentions 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 correct1.

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 coincidence 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

1 The principal collections are:—Kemble, Codex Diplomaticus, 1839-48.—

Thorpe, Diplomatarium, 1865__Earle, Land Charters, 1888.—Birch, Cartu-

larium, 1885 ff.—Napier and Stevenson, Crawford Charters, 1895.—Four volumes of facsimiles published by the British Museum, 1873 ff., and two volumes by the Ordnance Survey, 1877 ff.


Chronicles, etc.

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.

Lastly, we have legal and official documents of the Anglo-Norman time, and foremost among them Domesday Book, which expressly or by implication tell 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 presents a great deal of obscurity to a modern inquirer, not so much for actual lack of materials as for want of any sure clue to 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 from our scope.

As regards personal condition, we find the radical distinction, universal in ancient society, between the free man and the slave.

Anglo-Norman documents.

Survey of Anglo-Saxon legal institutions.




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 lords. We have nothing to show the origin or antiquity of this division; we know that it was the immemorial custom of Germanic 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 recognized 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 exhaustive. An ordinance of ^Ethelstan 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 modern terms) as a rogue and vagabond1. 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*. Kings were glad to draw to their own use, if they might, the feeling of personal attachment that belonged to lordship in the proper sense, and at a later time the greater lords may now and again have sought to emulate the king's general power. 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

1 .Ethelst. n. 2. A man who was considerable enough to have only the king above him required, of course, no other lord. ' A..-S. Chron, ann. 921.

incident to their own tenure1. 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 of the tenant an importance which soon became preponderant, and had much to do with the ultimate extinction of personal servitude under the Tudor dynasty2.

Dependence on a lord was not the only check on the individual freedom of a freeborn man. Anglo-Saxon polity preserved, even down to the Norman Conquest, many traces of a time when kinship was the strongest of all bonds. 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 may take the form of the joint family or household which, in various stages of resistance to modern tendencies and on various scales of magnitude, 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 wanes. Private feud is controlled, regulated, put, one may say, into legal harness; the avenging and the protecting clan of the slain and the slayer are made pledges and auxiliaries of public justice. In England the legalized blood-feud expired almost within living memory, when the criminal procedure by way of 'appeal' was finally abolished. We have to conceive, then, of the kindred not as an artificial body or corporation to which the State allows authority over its members in order that it may be answerable for them, but as an element of the State not yielding precedence to the State itself. There is a constant tendency to conflict between the old customs of the family and the newer laws of the State; the family preserves archaic habits and claims which clash at every turn with the development of a law-abiding

1 .Elf. 43.

1 A solitary claim of villeinage is reported in the reign of James I.

The family.

commonwealth of the modern type. In the England of the tenth century1, we find that a powerful kindred may still be a danger to public order, and that the power of three shires may be called out to bring an offending member of it to justice. At the same time the family was utilized by the growing institutions of the 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 collectively responsible for its members2. 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 recognized in the very latest Anglo-Saxon custumals, though some details that 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 bis 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 England8.

Further, we find distinctions of rank among freemen which, though 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)4 to men of noble birth. The ordinary freeman is a ' ceorl,' churl (there is no trace before the Norman Conquest of the modern degradation of the word); the noble by birth is an 'eorl.' This last word came later, xmder Danish influence, to denote a specific

1 .Atheist, vi. (Indicia civitatia Lundoniae) 8, § 2.

s Kemble, Saxons, i. 261. The A.-S. term for the kindred is 'mtegS,' in Latin versions 'parentela.'

* Hen. 88, § 13; Schmid points out the strong resemblance to Lex Sal. 60, ' De eo qui se de parentilla tollere vult.'

* Brunner, D. B. Q. i. 104'ff.

Banks: ceorl, eorl, gear!!.

office of state, and our present ' earl' goes back to it in that sense. The Latin equivalent comes got specialized 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. 'GesfS' was the earliest 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. It was current in Ine's time but already obsolete for practical purposes in Alfred's; latterly it appears to have implied hereditary rank and considerable landed possessions. The element of noble birth is emphasized by the fuller and commoner form ' gesiScund.'

The official term of rank which we find in use in and after Alfred's time is 'thegn1' (]>egen, in Latin usually minister). Originally a thegn is a household officer of some great man, eminently and especially of the king. From the tenth century to the Conquest thegnship is not an office unless described by some specific addition (horsj?egen, disc]?egen, and the like) showing what the office was. It is a social condition above that of the churl, carrying with it both privileges and customary duties. The ' king's thegns,' those who are in fact attached to the king's person and service, are specially distinguished. We may perhaps roughly compare the thegns of the later Anglo-Saxon monarchy to the country gentlemen of modern times who are in the commission of the peace and serve on the grand jury. But we must remember that the thegn had a definite legal rank. His wergild, for example, the fixed sum with which his death must be atoned for to his kindred, or which he might in some cases have to pay for his own misdoing, was six times as great as a common man's; and his oath weighed as much more in the curious contest of asseverations, quite different from anything we now understand by evidence, by which early Germanic lawsuits were decided. It is stated in more than one old document that a thegn's rights might be claimed by the owner of five hides (at the normal value of the hide, 600 acres) of land, a church and belfry, a 'burgh-gate-seat' (which may imply a private jurisdiction, or may only 1 The modern form thane has acquired misleading literary associations.


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 charges1. 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 improbable. We have no reason to reject the tradition about the five hides, which is borne out by some later evidence. But this gives us no warrant in any case for denying that a thegn 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 our later law, for they left no visible mark on the structure of Anglo-Norman aristocracy*.

The last remark applies to certain other distinctions which 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-hynd' men were thegns, 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 like manner, the privileges of clerks in orders, whether 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

1 Schmid, Gesetze, pp. 389, 397, 431.

5 Little, Gesiths and Thegns, E. H. B. iv. 723; Maitland, Domesday Book, 161.

Other distinctions.

Privileges of clergy.

to them that Anglo-Saxon law has left us any written evidences at all. But the really active and important part of the clergy 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 villeinage consisting mainly in attachment to the soil, existed, and was fully recognized, in England until the twelfth century. We have no means of knowing with any exactness the number of slaves, either in itself, or as compared with the free population. 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-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 punishment1; and one obscure passage seems to relate to the offence of kidnapping freeborn men2. 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 slavery8.

Selling Christian men beyond seas, and specially into bondage to heathen, is forbidden by an ordinance of ^Ethelred, repeated almost word for word in Cnut's laws4. Wulfstan, archbishop of York, who probably took an active part in the legislation of ^thelred, denounced the practice in his homilies6, 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 information to specify them. Towards the end of the eleventh century

1 Wiht. 26.

2 HI. and E. 5 ; see Schmidthereon. The slave-traders were often foreigners, commonly Jews. Ireland and Gaul were the main routes.

3 In. 11.

4 Miheti. v. 2, vi. 9 ; On. n. S; cf. Lex Eib. 16; Lex Sal. 39 § 2. s A. Napier, Berlin, 1883, pp. 129, n., 158, 160-1.



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 scandal1. Its continued existence till that time is further attested by the prohibition of ^Ethelred and Cnut being yet again repeated in the laws attributed to William the Conqueror8.

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 meritorious work, if not a duty8. Sometimes well-to-do people 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 serf4. 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 dependants of his former master; and the express licence 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 left the domain6. 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 disposal6. Moreover, even the earliest written laws constantly assume that a ' theow' might be able to pay 6nes for public offences.

1 Will. Malm. Vita Wulstani, in Wharton, Anglia Sacra, ii. 258; quoted nearly in full, Freeman, Norman Conquest, iv. 386.

2 Leges Willelmi, i. 41.

3 Cod. Dipl. iv. 263 (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.

« L. Q. E. vii. 64.

6 Wiht. 8: an archaic authority, but there is nothing to show any change. 6 Mlf. 43 (as Schmid and the Latin version take it). Cp. Theod. Pen. xiii. 3 (Haddan and Stubbs, Councils, iii. 202).


On the whole the evidence seems to show that serfdom was much more of a personal bondage and less involved with the occupation of particular land before the Norman Conquest than after; in short that it approached, though it only approached, the slavery of the Roman law. Once, and only once, in the earliest of our Anglo-Saxon texts1, we find mention in Kent, under the name of leet, 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 effect*. 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 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-helper8.

We now turn to judicial institutions. An Anglo-Saxon 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 Wessex4, and perhaps preserve the tradition of a time when there was no jurisdiction save by consent of the parties. Probably the public courts

1 .Ethelb. 26.

* Wiht. 8: ' If one manumits his man at the altar, let him be folk-free.'

3 Glanvill, ii. 6. Details on Anglo-Saxon servitude may be found in Kemble, Saxons, bk. i. c. 8, and Larking, Domesday Book of Kent, note 67. See also Maurer, Kritische Ueberschan, i. 410; Jastrow, Zur strafrechtliehen Stellung der Sklaven (Gierke's Untersnchungen, 1878); Brunner, D. B. G. i. 95.

4 In. 9. The wording ' wraoe d6' is vague: doubtless it means taking the other party's cattle.




Courts and justice.

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 England1. 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 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 authorities 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 manuer 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 precautions on this head, to which we shall return presently.

As to procedure, the forms were sometimes complicated, 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

1 E.g. Clovelly Court, N. Devon. Cp. Eentalia et Cnstumaria, Somerset Becord Society, 1891, Glossary, s. v. Curia. For the aula, haula, halla of D. B.. see Maitland, Domesday Book, 109 3.


individual cases1. 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. The ordeal of hot water appears in Ine's laws though until lately it was concealed from our view by the misreading of one letter in the text8. Trial by combat was to all appearance unknown to the Anglo-Saxon procedure4, though it was formally sanctioned on the continent by Gundobad, king of the Bur-gundians, at the beginning of the sixth century and is found in the laws of nearly all the German tribes5. An apparently genuine ordinance 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 form8. Permitted or justified private war, of which we do find considerable traces in England7, is quite a different matter.

1 Brunner, D. B. G. ii. 375.

2 The usual modern term ' compurgator' was borrowed by legal antiquaries from ecclesiastical sources in much later times.

8 This discovery is due to Dr Liebermann, Sitzungsberichte der berliner Akademie, 1896, xxxv. 829. The less common word ceac (a cauldron) was confused with ceap (buying) and the genuine reading was treated by the editors as an unmeaning variant.

4 The appearance of orest (a correct Northern form=Eng. earnest) among the privileges of Waltham Abbey, Cod. Dipl. iv. 154, 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.

» Brnnner, D. E. G. ii. 415.

• Leg. Will. n. (Willelmes cyninges asetnysse).

7 331f. 42. Sir James Stephen's statement (Hist. Crim. Law, i. 61) that ' trial by battle was only private war under regulations' cannot be accepted.

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 complained 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 by the fore-oath the alternative of a three-fold oath or the ordeal1.

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 Norman and later times.

One well-known peculiarity of the Anglo-Saxon period is that secular and ecclesiastical courts were not sharply separated, and the two jurisdictions were hardly distinguished. The bishop sat in the county court; the church claimed for him a large share in the direction of even secular justice2, 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.

The most general Anglo-Saxon term for a court or assembly empowered to do justice is gem6t. In this word is included all authority of the kind from the king and his witan* downwards. Folc-gemrft 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

1 On. n. 22, and the newly-printed gloss in Liebermann, Consil. Onuti, p. 14. From this, so far as it may be trusted, it would seem that a triple fore-oath might put the ' credible' defendant to a stronger oath and the ' incredible' one to the severe 'three-fold' ordeal.

2 Edg. in. 5 (third quarter of tenth century); 'Institutes of Polity' in Thorpe, Ancient Laws, ii. 313.

3 However, as to the manner in which justice was done in ecclesiastical causes and when clerks were accused extremely little is known. See Stubbs, Historical Appendix to Report of Eccl. Courts Comm. 1883, p. 23; Makower, Const. Hist, of the Church of England, 384 ft.

4 'Witenagem6t' does not appear to have been an official term.

TJnion of temporal and

spiritual jurisdiction.

The king's justice not ordinary.

reserved power which a man must not invoke unless he has failed to get his cause heard in the jurisdiction of his own hundred1. 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 men5. 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 rebellion8.

After the Norman Conquest, as time went on, the king's justice became organized 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 modern system of equity4. 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 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 kingdom5.

We have many examples, notwithstanding the repeated ordinances forbidding men to seek the king's justice except after failure to obtain right elsewhere, of the witan exercising an original jurisdiction in matters of disputed claims to book-land'. This may be explained in more than one way. Book-land was (as we shall see) a special form of property which only the king could create, and which, as a rule, he created with the consent and witness of his wise men. Moreover, one or both parties to such suits were often bishops or the heads of great 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.

1 Edg. in. 2; repeated Cnut, n. 17.

2 Atheist, n. 3. s Cf. Atheist, vi. (lud. Civ. Lund.) 8 §§ 2, 3. 4 Blackstone, Comm. iii. 51. 5 Blackstone, Comm. iii. 444.

* Cases collected in Essays in Anglo-Saxon Law, ad fin.

Jurisdiction of witan.

The charters that inform us of what was done, especially in 803 and 825, at the synods or synodal councils of Clovesho1, that ' famous place' whose situation is now matter of mere conjecture2, 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 were8. 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.

The ordinary Anglo-Saxon courts of public justice were the county court and the hundred court, of which the county court was appointed to be held twice a year, the hundred every four weeks4. Poor and rich men alike were entitled to have right done to them, though the need of emphasizing this elementary point of law in the third quarter of the tenth century suggests that the fact was often otherwise6.

Thus the hundred court was the judicial unit, so to speak, for ordinary affairs. We have no evidence that any lesser public court existed. It is quite possible that some sort of township meeting was held for the regulation of the common-field husbandry which prevailed in most parts of 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. ' 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 itself6.

The ordinances which tell us of the times of meeting appointed for the county and hundred courts tell us nothing whatever of their procedure. It ,may be taken as certain,

1 Haddan and Stubbs, Councils, iii. 541, 596.

2 Earle, Land Charters, 453. » Kemble, Saxons, ii. 247, 249.

4 Edg. i. 1 (the ascription of this ordinance to Edgar is conjectural, but serves to fix its earliest possible date, Schmid, p. xlviii.; Liebermann, Consil. Cnuti, p. v.); Edg. in. 5.

5 Edg. in. 1.

6 Cf. Schmid, Glossar, s. v. mearc; Maitland, Domesday Book, 275.

County and



however, that they had no 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 we know that after the Norman Conquest England was covered 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 now the most usual technical name for a court of this kind, but it is a comparatively modern name. 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 institution was imported from the continent not long before that time, or on the contrary had been known in England a good while before, perhaps as early as the date of our earliest Anglo-Saxon laws and charters, notwithstanding that it is not expressly and directly mentioned in documents of the earlier period. For our present purpose it is enough to be sure that private courts were well established at the date of the Conquest, and had been increasing in number and power for some time1.

Proceeding to the subject-matters of Anglo-Saxon jurisdiction, we find what may be called the usual archaic features. The only substantive rules that are at all fully set 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 tact people who have no system of credit and very little foreign 1 Maitland, Domesday Book, 80 ff., 258 ff.

Private jurisdiction.

Subject-matter of Anglo-Saxon justice.

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 authorities 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 rules1. But this kind of reference, at the hands of a compiler who could also quote the Theodosian code*, throws no light whatever on the possibilities 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 corresponding ones of which evidence can be found on the continent.

Preservation of the peace and punishment of offences were 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 this 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

1 Leg. Hen. o. 87 g 10, 89 § 1, secundum legem Saligam; 90 § 4, secundum legem Kibuariorum solvatur.

2 Leg. Hen. c. 33 § 4: 'de libro Theodosianae legis, iniuste vietus infra ties menses reparet causam.' The quotation is really from an epitome of the Lex Romana Visigothorum.

The king's peace.

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 protectiou is called griS as distinct from the more general word frift. Although the proper name is of comparatively recent introduction1 and of Scandinavian extraction, the thing seems to answer to the Frankish sermo or verbum regis, which is as old as the Salic law3. 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 English3. On the continent the king appears at an early time to have been recognized as protector of the general peace, besides having power to grant special protection or peace of a higher order4.

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

1 See A.-S. Chron, ann. 1002.

2 Fustel de Coulanges, Origines du systeme feodal, 300 ff. Lex Sal. xiii. 6; Ivi. 5. Edict of Chilperic, 9. To be out of the king's protection is to be extra sermonem tuum, faros nostro sermone. In xiv. 4, praeceptum appears to be the king's written protection or licence. The phrase in Ed. Conf. 6 § 1 (cf. Brunner, D. E. Q. ii. 42), ore ino utlagabit eum rex, or, as the second edition gives it, utlagabit eum, rex verbo orii eui, looks more like the confused imitation of an archaizing compiler than a genuine parallel.

3 For some further details see Pollock. Oxford Lectures, 1890, 'The King's Peace,' 65.

4 See Brunner, D. E. G. ii. §§ 65, 66, who calls attention (p. 42) to the relative weakness of the crown in England before the Conquest.




of the peace of the witan1. We have not found English authority for any such term as folk-peace, 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 both its history and meaning are disputable. This, however, is a matter of administrative mechanism rather than of the law itself. We shall have a word to say about this matter when hereafter we speak of frankpledge.

In Anglo-Saxon as well as in other Germanic laws we find that the idea of 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 community must be content 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 law3. But the feud may be appeased by the acceptance 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 it offers. It may serve only the purpose of saving disputes as to the amount proper to be paid when 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

1 Edw. n. 1. Schmid, Gloss, s. v. Friede, considers the general peace to have been the king's peace in some sense. This lacks authority, but seems accepted as regards the continent: Brunner, D. R. G. ii. 42. It is nearer the truth than any talk about the 'folk-peace.'

2 Cn. n. 20.

3 JE\l. Prolog. 19, copied from the book of Exodus, is of course no exception.

Fend and atonement.

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 view1. 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 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. A man's life has its price, but otherwise there is not even any recognized 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-payment2,' or oftener in English documents wer simply; moreover, 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 unknown 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 Alfred8, the power

1 Cp. Grettis Saga, c. 79.

2 Brmmer, D. E. G. i. 86. An archaic synonym lead occurs jEthelb. 22, 23, cp. Grimm, 652.

3 XM. 42.

Tariff of compositions.

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 peace1. But it was at least theoretically possible, down to the middle of the tenth century, for a man-slayer 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 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.

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. Wtte 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 bdtleds, 'bootless'; that is, the offender 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 applicable to freemen, were money fines, and death in the extreme cases where redemption with a money fine was not allowed. A credible tradition preserved in the prologue to Alfred's laws tells us that after the conversion of the English to Christianity

1 Edm. it. 7, and Be Wergilde (Schmid, App. vii.) § 4.

'•* Edm. n. 1. jEthelr. it. 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: Bruuner, D. B. G. i. 163.

3 Tac. Germ. c. 12. Bat is closely connected with ' better': the idea is 'making good.'

Wer, wfte, b<Jt.


the bishops and wise-men ' for the mild-heartedness sake that Christ taught' sanctioned the redemption by fine of offences less than that of treason against one's lord1. 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 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 times8. In criminal proceedings, however, it was used as a substantive penalty for violent resistance to a legal process or persistent contempt of court4. Before the Conquest, outlawry 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 wergild". It was thought, indeed, down to the latter part of the sixteenth century, that the same reason applied to persons under the penalties appointed by the statutes of praemunire, which expressly included being put out of the king's protection'.

It would appear that great difficulty was found both in obtaining specific evidence of offences, and in compelling accused and suspected persons to submit themselves to justice, and pay their fines if convicted. This may serve to explain the severe provisions of the later Anglo-Saxon period against a kind of

1 .Elf. Prolog. 49 § 7.

2 In. 18; Mti. 32; Cn. n. 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 civil proceedings only in 1879, 42 & 43 Viet. c. 59, s. 3. In criminal matters it is still possible. But it has not been in use for a generation or more.

4 E. & G. 6 § 6; cp. Edg. i. 3 ; .SSthelr. i. 1 § 9, and many later passages.

5 E. & G-. 6 § 7: the outlaw, if slain, shall lie teyylde, the exact equivalent of the Homeric rtiwoums.

• Co. Litt. 130 a; Blackstone, Comm. iv. 118; 5 Eliz. c. 1.

Difficulties in compelling submission to courts.

peraons described as ' frequently accused,'' of no credit1.' 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 accusers2. 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 now-a-days in the theoretical power of grand juries to present offences of their own knowledge.

Several passages, and those from a period of comparatively settled government, show that great men, whose followers had committed crimes, often harboured and maintained them in open defiance of common right8. If it was needful for ^Ethelstan, the victor of Brunanburh, to make ordinances against lawlessness 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 century4.

Putting together these indications of a feeble executive 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. Gundobad 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 Lombard6 freemen

1 Eng. tikt-bysig, folce ungetrfwe, Lat. incredibilii. The idea is the contradiction of getrfwe = homo probus or legalis. Folce or eallum fake 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.

2 Edg. in. 7; On. n. 33 ; cp. ib. 22.

3 jEthelst. n. 3, cp. 17; iv. 3. Cp. vi. 8, as to over-powerful clans.

4 Cf. Baillie Nicol Jarvie on the state of the Highlands, Rob Boy, ii. oh. 12 (original edition).

5 Liutprand openly regretted that trial by combat could not be abolished. Liutpr. c. 118: ' incerti sumus de iudicio dei, et niultos audiuimus per pugnam

Maintenance of offenders by great men.

Why no trial by battle.

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 so much. All this, however, is conjectural. There is no reason to doubt that among some Germanic tribes battle was recognized as a form of ordeal from very ancient times; we have no means of solving the ulterior question why those tribes did not include the ancestors of the Anglo-Saxons.

Offences specially dealt with in various parts of the Anglo-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 Parliament1. The like appears in other Germanic documents2. 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 magistrates8. 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

sine institia causam suam perdere: Bed propter consuitutinem gentis nostrae langobardorum legem ipsam uetare non possumus'. A vitas, bishop of Vienna, protested against Gundobad's ordinance. At a later time Agobard of Lyons denounced it. See Lea, Superstition and Force, ed. 4, p. 409.

1 -Elf. 4.

2 Ed. Both. 1 (L. Langob.) ' contra animam regis cogitaverit aut con-siliaverit'; L. Sax. 24, ' de morte oonsiliatus fuerit'; so L. Baiuw. ii. 1; L. Alam. 23: 'in mortem duels consillatus fuerit'; cp. Brunner, D. B. G. ii. 688.

8 The following words no doubt substantially represent the text of the lex Julia: ' Cuiusve opera consilio dolo malo consilium initum erit quo quis magistratus populi Bomani qaive imperium potestatemve habeat occidatur.' Dig. 48. 4. ad 1. luliam maieatatis, 1 § 1. The consiliaverit, consiliatas fuerit, of the Germanic laws can hardly be an accidental resemblance. In Glanv. xiv. 1, the principal terms are machinatum fuisse vel aliquid feciste, but consilium dedisse is there too.

Special offences: treason.

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 treason' of medieval and modern criminal law.

The crime of treason was unatonable1, 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 ordeal2, 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 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 king's protection is made in favour of strangers; a matter of some importance when we remember that before the time of Alfred a Mercian was a stranger in Kent, and a Wessex man in Mercia. Two-thirds of a slain stranger's wer goes to the king. We find a rudiment of the modern distinction between murder and manslaughter, but the line is drawn not between wilful and other killing, but between killing openly and in secret. It would seem indeed that' morS' at one time meant only killing by poison or witchcraft. The offence of ' morS' was unatonable,

1 Cn. ii. 64; Leg. Hen. 12.

2 .Elf. 4; Atheist, n. 4; ^thelr. v. 30, VI. 37; Cn. n. 57. 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. .iEthelred's ordinance, vi. 37, requires the 'deepest oath,' whatever that was. Cp. Godwine's oath ' cum totius fere Angliae princip-ibus et ministris dignioribus,' Flor. Wigorn. i. 195. 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 Bninner, D. B. G. ii. 684. The Lex Bibuaria requires in some special cases an oath of 36 or even 72 men.

8 Edg. i. 9; Dom be hdtan isene and wattre, Schm. App. xvi.


and the murderer, if ascertained, might be delivered over to the dead man's kindred1.

An outlaw might, as we have seen, be slain with impunity; and it was not only lawful but meritorious to kill a thief flying from justice*. An adulterer taken in flagrante delicto by the woman's lawful husband, father, brother, or son, might be killed without risk of blood-feud. In like manner homicide was excusable when the slayer was fighting in defence of his lord, or of a man whose lord he was, or of his kinsman; but a man must in no case fight against his own lord8. A man who slew a thief (or, it would seem, any one) was expected to declare the fact without delay, otherwise the dead man's kindred might clear his fame by their oath and require the slayer to pay wergild as for a true man4. We do not find any formalities prescribed in the genuine dooms. The safest course would no doubt be to report to the first credible person met with, and to the first accessible person having any sort of authority*.

Injuries and assaults to the person were dealt with by a minute scale of fixed compensations, which appears, though much abridged, as late as the Anglo-Norman compilations. But rules of this kind are not heard of in practice after the Conquest. It is worth while to notice that the contumelious outrage of binding a free man, or shaving his head in derision, or shaving off his beard, was visited with heavier fines than any but the gravest wounds6. In the modern common law compensation for insult, as distinct from actual bodily hurt, is arrived at only in a somewhat indirect fashion, by giving juries a free hand in the measure of damages. Accidental injuries are provided for in a certain number of particular cases. A man carrying a spear should carry it level on his shoulder in order to be free from blame if another runs upon the point. If the point is three fingers or more above the butt (so as to bring the point to the level of a man's face), he will be liable to pay wer in case of a fatal accident, and all the more if the point

1 On. H. 56; Hen. 71, 92. See Schmid, Gloss, s. v. morfS, and op. the old Norse adage, 'Night-slaying is murder" (Natt-vig er mortS-vlg); also Lex Bib. 15.

3 In. 35, cp. 28; Atheist, vi. (lud. Civ. Lund.) 7 ; cp. Ed. Conf. 36.

3 mt. 42. * In. 21.

9 Hen. 83 § 6. The detailed instructions for laying out the slain man with his arms, etc., are curious but untrustworthy. The main object was to show that the lulling was not secret.

« Mlt. 35. For continental analogies, see Brunner, D. B. G. ii. 674.

Justifiable homicide.

Personal injuries:


were in front (so that he could have seen the other's danger)1. This is rational enough ; but in the case of harm ensuing even by pui e accident from a distinct voluntary act, we find that the actor, however innocent his intention, is liable, and that the question of negligence is not considered at all. Legis enim est qui inscienter peccat, scienter emendet, says the compiler of the so-called laws of Henry I., translating what was doubtless an English proverb2. There is no earlier English authority, but such is known to have been the principle of all old Germanic laws. It seems to have extended, or to have been thought by some to extend, even to harm done by a stranger with weapons which the owner had left unguarded. Cnut's laws expressly declare, as if it were at least an unsettled point, that only the actual wrong-doer shall be liable if the owner can clear himself of having any part or counsel in the mischief*. Borrowing or stealing another man's weapons, or getting them by force or fraud from an armourer who had them in charge for repair, seems to have been a rather common way of obscuring the evidence of manslaying, or making false evidence; and it was a thing that might well be done in collusion. One man would be ready to swear with his oath-helpers,' I did not kill him,' the other, with equal confidence, ' No weapon of mine killed him4.' And in consequence, it would seem, of the general suspicion 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 him8, perhaps even for their return free from any charge of having been unlawfully used6. Such

1 .331f. 36 (probably enacted in consequence of some particular case in the king's court, or otherwise well known); cp. Hen. 88 §§ 1-3. The proviso as to holding the spear level is easily understood as referring to a spear of moderate length, which could not be well carried, like the long 16th-17th cent, pike, with the point so high up as to be wholly out of harm's way. The carriage of the 'puissant pike' was almost a special art when its time came.

2 Hen. 88 § 6, 90 § 11. [)>e] brecht ungewealdes lete gewealdes, in Germany u-er unwillig gethan muss wlllig zahlen; see Heusler, Institutionen, ii. 263.

3 On. n. 75 ; cp. Hen. 87 § 2.

4 See Ine 29 ; .Elf. 19.

5 JSlf. 19 § 3 ; Hen. 87 § 3. A similar rule as to arms given in pledge still has the force of law in Montenegro: Code general des biens (tr. Dareste), Paris 1892, art. 176.

6 The word gesund may well point to a warranty of this kind. Brunner, Forschungen, 520.

a charge might have involved the forfeiture of the weapon until quite modern times.

The extreme difficulty of getting any proof of intention, or of its absence, in archaic procedure is, perhaps, the best explanation 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 dangerous 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 documents1. Liability for damage done by dogs is on the other hand rather elaborately dealt with by a scale of compensation increasing after the first bite2.

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 on another, which killed him, the tree belonged to the dead man's kinsfolk if they took it away within thirty days*. This kind of accident is still quite well known in the forest countries of Europe, as witness the rude memorial pictures, 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 compensation4.

Theft, especially of cattle and horses, appears to have been by far the commonest and most troublesome of offences. There is a solitary and obscure reference to ' stolen flesh' in the laws of Ine6. Perhaps this is to meet the case of a thief driving

1 .iElf. 12 seems to relate only to wilful trespass in woods.

2 .Elf. 23. 3 -Elf. 13. 4 .Elf. 24. « In. 17.

Archaic principle of responsibility for accidents.


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 recognized penalty when the thief was* unable to make restitution. This, if it stood alone, might be regarded as handing over the debtor's person by way of compensation rather than a punishment 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 oath from having had any part in stolen cattle which had been found in his house8. But as late as the early part of the eleventh century, Wulfstan's homily4 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 sacrilege6. Stealing on Sunday, in Lent, and on Christmas, Easter, or Ascension Day, was punishable with a double fine by the old Wessex law6. In a modern system of law we expect a large portion of 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 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

1 Cn. n. 21. 2 Ib. 29. 3 Ine 7, 57.

4 Ed. Napier, Berlin, 1883, p. 158.

5 As to robbing corpses, Schmid, App. xv. Be Walreafe.

6 MIL 5 § 5 ; the principle is reaffirmed, but so vaguely as to suggest that it had become obsolete in practice, in Cn. n. 38.

contemplate 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 anywhere, -while a law of contract can hardly be said to exist, and, so far as it does exist, is an insignificant appurtenance to the law of property. But we must remember 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 modern lawyers call ownership or property, the dominium of the Roman system, is not recognized in early Germanic ideas. Possession, not ownership, is the leading conception; it is possession that has to be defended or recovered, and to possess 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 ownership finds any place in pure Germanic law. Those who have studied the modern learning of possessory rights and remedies are aware that our common law has never really abandoned this point of view.

Movable property, in Anglo-Saxon law, seems for all practical 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 faith and pledges were customary means of binding a bargain; and that contracts in writing were not in use. There is no evidence of any regular 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

Sale and



church. There is great reason to believe that everywhere or almost everywhere a religious sanction of promises has preceded the secular one1, and that honourable obligation has been more effective than might be supposed in aiding or supplementing the imperfections of legality2. 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 payment by instalments regulated8; 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 defendant must clear himself in twelve, so that falsehood on either side would involve manifold perjury and contempt of the church and the saints4. 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 undertakings 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 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 promise in the ordinary affairs of life. But we have no direct information whatever.

On the other hand, there runs persistently through the Anglo-Saxon laws a series of ordinances impressing on buyers

1 Muirhead, Private Law of Borne, 149, 163, 227 (origin of stipulation).

2 The Eoman words credere, fides, spondere, involve a whole history of this kind. Pernice, Labeo, i. 409; Pacchioni, Actio ex Sponsu, Bologna, 1888: Ehrenverpfandung in German formulas as late as 15th cent., see Kohler, Shakespeare vor dem Forum der Jurisprudenz, 1884, appx.

3 Edm. it. 7, and Be Wergilde, Schmid, App. vii.

4 2E\{. 33. Cp. the provisions as to 'briduw' in the laws of Howel (10th cent.) ap. Haddan and Stubbs, Councils, i. 237, 271.

Claims for stolen things: warranty.

)f cattle the need of buying before good witnesses. But this las nothing to do with the validity of the sale between the parties. The sole purpose, judging by the terms and context )f these enactments, is to protect the buyer against the subsequent claims of any person who might allege that the cattle iad been stolen from him. Difficulties of this kind were especially rife when the sale had been made (in the earlier times) in another English kingdom, or up the country. Hlothser and Eadric laid down the precautions to be observed by a Kentish man buying cattle in London, then a Mercian town1. Evidently great suspicion attached to sales made anywhere out :>f 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 alike2, and in the latest period we find the number of four witnesses specified3. 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 possession, and this process might be carried back to the fourth remove from the ultimate purchaser. These elaborate provisions for vouching to warranty (A.-S. tedm)4 or the custom on which they were founded, persisted for some time after the Norman Conquest6, and are interesting by their analogy to the doctrine of warranty in the law of real property, which afterwards 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

1 H1..& 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.

2 Edg. rv. 6; Cn. n. 24. s Leg. Will. I. 45.

4 See jEthelr. n. 9, Be tedmum, and Schmid's Glossary B. TV. Kdufe, Team. » Glanv. x. 15-17.

dooms of Ine contain a curious archaic provision1 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 considerable 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. We have gone into the matter elsewhere5, and we may confine ourselves here to a short statement of what is positively known.

Our Anglo-Saxon charters or books are mostly grants of considerable portions of land made by kings to bishops 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, in documents of the Norman age, 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 occupation of the soil. It was a grant of lordship and revenues, and in some cases 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 often large enough to confer powers equivalent to those of a modern tenant in fee simple. Accordingly book-land granted by such terms 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 dependants. It is important to remember that book-land was a clerkly and sxotic institution, and that grants of it owe their existence directly or indirectly to royal favour, and throw no light, save incidentally, on the old customary rules of land-holding.

1 Ine 53.

2 Pollock, The Land Laws, 3rd ed. Lond. 1896, chap. ii. and notes B, C and D; Maitland, Domesday and Beyond, 1897.

Land tenure.


When the day of conquest was at hand, many of the tillers of the ground were dependent on a lord to whom they owed rents and services substantially like those of which we have ample and detailed evidence in later documents. A large proportion of them were personally free men1; the homesteads were several, and every free man was answerable for his own fence*. There is little doubt that, except in the western counties, common-field agriculture was general if not universal8; 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 terms4. In the later Anglo-Saxon period, land held of a superior, whether much or little, is called l&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 derived6.

Folk-land is a term which occurs only in a few documents, and then without any decisive explanation. In the most authoritative 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 singularly little discussion, by Kemble and almost

1 Ine 3 § 2 ; Mil. 43; Beet. S. P. 3. " Ine 40.

1 Ine 42 is a good illustration, though by itself not conclusive.

4 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. Maitland, Domesday Book, 237-8.

5 See Fustel de Coulanges, Le benefice et le patronat, ch. iv-vii. « Boyal Prerogative, ed. 1849, p. 135.

Inferior tenures: ten-land.


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 considerable 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 Vinogradoff1 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 is 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; and our interpretation 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*.

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

1 Folk-land, E. H. B. viii. 1-17.

2 It is now prudent rather than necessary to remind the reader that Kemble's brilliant conjectures were premature and largely unwarranted.

Transition to Anglo-Norman feudalism.

doubtless tending for some considerable time before the Conquest 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 continental 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 well-marked. After its work is done we find several new lines of division introduced and some old ones obliterated, while all those that are recognized are deeper and stronger than before. The king's lordship and the hands that gather the king's dues are everywhere; and where they have come the king's law will soon follow.



Obscurity OF the law of Normandy as it was on the eve of William's [p-41] legal expedition, little is known for certain. To illustrate the period tory- which had elapsed since the settlement of the Northmen in Neustria, there are no written laws, no books on law and very few charters, while the chroniclers have not much to tell about the legal structure of the duchy, and what they tell is not always trustworthy. The England of the same period supplies us with the laws of Edward the Elder, ^Ethelstan, Edmund, Edgar, JEthelred 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 Domesday

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-Normannisches Erbfolgesystem, his Entstehung der Schwurgerichte, and his article upon this subject in Holtzendorff's Encyklopadie.—Waitz, Ueber die Quellen znr Geschichte der Begriindung der Normannischen Herrschaft in Frankreich, Nachrichten von der Gesellschaft der Wissenschaften, Gottingen, 1866, pp. 69—95.—Steenstrup, Inledning i Normannertiden, Copenhagen, 1876, of which the author gave a French translation in the Bulletin de la SocietS des antiquaires de Normandie, vol. x. p. 185, under the title Etudes preliminaires pour servir a Phistoire des Normands.—von Amira, Die Anfange des Normannischen Beichs, Historische Zeitschrift, Neue Folge, vol. iii. p. 241.— Delisle, Etudes sur la condition de la classe agricole en Normandie, Evreux, 1851, and the same writer's essays on Norman finance in the Bibliotheque de 1'Ecole des chartes, ser. n. vol. 5; ser. ni. vols. 1, 3.—The editions of the rolls and custumals referred to below.—Luchaire, Institutions monarchiques de la France sous les premiers Capetiens, 1883, and Luchaire, Manuel des institutions francaises, 1892.

CH. in.] , Norman Law. 65

[p. 42] Book or against those law-books which we know as the Leges of the Confessor, the Conqueror and Henry the First. The oldest financial records1, the oldest judicial records2 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 tres ancient Coutumier3, are younger and slighter than our Glanvill, and the Grand Coutumier, if not younger, is slighter than our Bracton4. Doubtless we have been more fortunate than 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. Hrolf, it is true, had gained the reputation of 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. Hrolf 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 long'. But not only had the Normans no written law of their own making; there was none that they could readily 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

1 Magni Eotuli Scaccarii Normanniae sub Regibus Angliae, published by Stapleton, and reprinted in Memoires de la Societe dee antiqnaires de Nor-mandie, vol. XT. A fragment of the roll of 1184 was published by Delisle, Caen, 185L

2 These are most accessible in Delisle's Becneil de jugements de 1'echiquier de Normandie an ziiim< siecle, Paris, 1864. A collection of judgments delivered in the assizes between 1234 and 1237 will be found in Warnkonig's Franzosische Staats- nnd Bechtsgeschichte, vol. ii. Urkundenbuch, pp. 48-69.

3 Edited by E. J. Tardif, Eouen, 1881.

4 This has been frequently printed. A recent edition by W. L. De Gruchy, Jersey, 1881, gives both the Latin and the French text. The Latin text has of late been admirably edited by E. J. Tardif under the title Somma de Legibus Normannie, 1896. He takes the Latin text to be the older and is inclined to date it in 1254-8.

* Dado, Duchesne, p. 85. The story of Hrolf s legislation has been rejected as fabulous, but is defended by Steenstrup, Etudes preliminaires, pp. 351-391.

P. M. I. 5

66 Norman Law. [BK. I.

ordinances of Merovingian and Karlovingian kings, will no [p. 43] 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 goes as far back as the Lex Salica, which was centuries old before Hrolf landed in Normandy, we know that he has no foreign texts at his command that are less obsolete.

Hotman The yet debated question, whether for a century or there-

fYench? abouts after their settlement in Neustria, the law of the Northmen or Normans was mainly Frankish or mainly Scandinavian, 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 Ijistory, very ready to fight 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 tradition1.

Norman To say that the law of Normandy was mainly French is to

feudal. say that it was feudal. But feudalism is an unfortunate word.

In the first place it draws our attention to but one element in

a complex state of society and that element is not the most

distinctive: it draws our attention only to the prevalence of [P- **]

1 This is frankly admitted by Steenstrup, 6tudes preliminaires, p. 375 : 'Les coutumes les plus anciennes de la Normandie datent da xiim° siecle, et le droit qa'elles nous presentent est francais, quoiqu'il y ait quelques restes des coutumes du Nord. Di serait injuste d'enregistrer ces sources dans la legislation scandinave; elles appartiennent a une legislation speciale, a la legislation anglo-normande.'

CH. ni.] Norman Law. 67

dependent and derivative land tenure1. 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 vassal, or rather it is the union of these two relationships. Were we free to invent new terms, we might Undfeudo-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 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 land at one and the same time different men have different ideals: the king has his opinion of what a king should be; his vassals have another opinion. The history of feudal law is the history of a series of changes which leave unchanged little that is of any real importance.

This, if true of the whole, is true of every element of feudal- Feudalism ism, and true in the first place of that element whence it takes mandy. its name. In England from almost, if not quite, the earliest moment of its appearance, the vrordfeodum seems not merely to imply, but to denote, a heritable, though a dependent right. But if on the continent we trace back the use of this word, we find it becoming interchangeable with beneftcium, and if we go [p. 45] back further we find beneftcium interchangeable 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 1 Waitz, D. V. G. vi. 1.


68 Norman Law. [BK. i.

fee in one breath1. The Norman conquest of England occurs at a particular moment in the history of this process. It has already gone far; the vr<yrAsfeuan,feudum, feodum are fast supplanting beneficium; the feodum is hereditary; men now see little difference between the feodum and the alodus or alodium, the fullest 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 reliefs and wardships. 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. So again with that most essential 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 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 William 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 a first glance at the [p. 46] Norman chronicles might induce us to say that the Normans had little law beyond 'the good old rule, the simple plan." But

1 It seems to be now generally admitted that the Roman precarium is one of the germs of feudalism; Waitz, D. V. G. ii. 229; Brunner, D. B. G. i. 211; Fustel de Coulanges, Le benefice 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 donationes et beneficii causam quam ad negotii contracti spectat precarii conditio." The belief that the feudum is in any way connected with emphyteusis has long been exploded.

CH. in.] Norman Law. 69

lawlessness is often a superficial phenomenon and whenever the duke was strong enough 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, is to say little; but it would be difficult for us to say 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.

To the great generalization which governs the whole scheme Dependent of Domesday Book, the theory that every acre of land is tenure immediately or mediately ' held of' the sovereign lord, the Normans in their own country may not have arrived. But Domesday Book by itself would suffice 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 owner of the land that he gives, or at all events is not the only person interested in it. The land is held by tenants of divers classes, milites, vavassores, hospites, coloni, conditionarii, villani, rustid, and these tenants (that is to say, his rights over these tenants) he gives to the church1. But further, if he has subordinates who have rights in the land, he has also superiors with rights in the land ; he makes the gift with the consent of his lord; that lord's confirmation is confirmed by the duke of the Normans, perhaps it is even confirmed once more by the duke or king of the French8. Of the alodium we often read,

1 The term which occurs most often is hospites, a term which did not obtain a 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 ' com colonis et conditionariis sen liberis hominibus'; Gall. Christ, xi. Instrum. p. 66; Neustria Pia, p. 626. In another charter be confirms < dominium cum militibus quod dedit Olilia'; Gall. Christ, xi. Instrum. p. 203.

2 In 968 Duke Bichard the Fearless grants Bretteville to Saint Denis with the assent of his lord Hugh Duke of the French,' cum assensu seuioris mei Hugonis Francorum Principis'; Bouquet, ix. 731. In 1006 King Bobert confirmed a gift made by Duke Bichard the Good to Fecamp; 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

70 Norman Law. [BK. i.

and occasionally it is contrasted with the beneficium, the one [p. 47] still meaning full ownership, the other dependent, and in some degree precarious, tenure1. 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 person8. On the other hand, the beneficium has gone half-way to meet the alodium. The 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 that this had been so from the first, from [p. 48] the day when, according to Norman tradition, Hrolf roped

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 Taisson, when endowing an abbey, forbids any of bis barons or other men to give or sell any of their possessions to any other church; Gall. Christ, xi. lustrum, p. 63.

1 Neustria Pia, 311: 'Ego Abbas Albertus Abbatiae SS. Stephani Protho-

martyris et Christi Confessoris Maximini......erat mihi qaidam alodns ex

materna hereditate, non ex alicuins beneficio, quern S. Petro in Gemmetico monasterio...dedi. Est autem ipse alodus in pago Belismensi.' Ibid. 217 in a charter for Fecamp, Richard II. says that he is pleased to confirm 'ea quae fideliter commnni nostro (?) aut precario vel beneficiis quae nostri iuris erant vel de hereditatibus 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. Rouen Cartulary (ed. Deville), 451: ' dedit S. Trinitati omnem decimam terrae suae in alodio quam domini sui Bodolfi de Warenna tenebat beneficio.' Neustria Pia, 634; the abbot of Caen 'emit allodium' and afterwards 'dedit in feodo."

2 Neustria Pia, 627: William the Conquerqr grants to the Abbey of Caen 'totum alodium quod tenent Osmundus, Aculeus, Richardus et Rogerius in territorio Calvi Montis super Divam; et etiam totum illud quod tenent quieum-que allodiarii infra leugam Pontis Divae.' Ibid. 636: 'Rogerins de Rozel vendidit Gisleberto Abbati [de Cadomo] concedente Normaniae Comite, pro xv lib. census, allodium simm totum quod habebat in Rozel, tali conditione ut eum de Sancto [Stephano] teneret per tale servitium quale antea ex eo Comiti reddebat.' In this case the alodiary does service for his land.

8 It is thus, for example, that William of Jumieges (Duchesne, 250) speaks of the relation between Duke Richard II. and his bastard brother William:—' Is enim [Willelmus] fraterno contubernio Oximensem ab ipso [Hicardo] accipiens munere comitatum ut inde exhiberet ei militiae statuta...dominium eius sprevit." William the Conqueror gives to the church of Lisieux ' terrain de servitium militurn...dominium cum militibus quod dedit Olilia'; Neustria Pia, 585; Gall. Christ, xi. Instrum. p. 203. Richard son of Abp. Robert of Rouen 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 circ. 1060.

CH. in.] Norman Law. 71

out the land and distributed it among his followers1. Whatever may have been the terms upon which Hrolf 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 Hrolf 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. From the first the rights of the Norman nobles seem to have been hereditary. It may well be, however, that there was an 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 him from habitually having splendid fiefs to give away to his kinsfolk8. On the eve

1 Dudo, Duchesne, 85: ' Illam terrain suis fidelibus funicnlo divisit.'

2 According to Dudo, Duchesne 82-84, the grant was made ' in sempiternam per progenies progenieram possessionem...quasi funduru et alodium in alodio et in fundo.'

3 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 Jumieges, Duchesne, 250, says that Richard the Good gave to his brother William the county of En and a beautiful girl called Leseelina, the daughter of one Thurkill, a man of noble birth. The duke seems to be disposing of the hand of a vassal's daughter. So again Orderic (ed. le Prevost), ii. 409, speaking of the days of William the Conqueror, says: 'Guillelmua Gualterii de Falesia filing fnit et in militia minium viguit, nnde Guillelmns Princeps filiam Guidmundi cum toto ei honore Molinensi contnlit.' 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 Richard the Fearless, see Palgrave, Hist. Normandy, ii. chs. 3, 4; Freeman, Norman Conquest, ch. iv. § 4; Kalckstein, Oeschichte des franzosischen Konigthums, i. 238-9. Dudo'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 Cnnt 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 cam rege Francornm manente, Normannia fiscus regalis erat.' It is difficult to square this story with the known facts; still there seems to be 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 monarchiqnes sous les premiers Capetiens, i. 113-4; ii. 15.

72 Norman Law. [BK. i.

of the conquest of England many of the great houses owed [p. 49] their greatness to some more or less legitimate relationship— legitimacy was a matter of degree—between them and the ducal family. Still the feoda were hereditary, and seemingly 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 be brought1.

Seignorial Some such scheme of dependent ownership is necessary if 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 heritable is plain. The honores of the Norman nobles comprised rights of jurisdiction; the viscounts were in name the successors of royal officials, of Frankish vicecomites whose offices had become hereditary1. Also the lands of the churches were defended by ducal grants of ' immunity,' grants [p. 50] modelled on Frankish precedents". But the principles which regulated the existence and the competence of seignorial courts

1 About the time of the Conquest the word feodum becomes very common in the Norman charters; but beneficium still appears. William of Jumieges, Dnchesne, 259, tells how William of Belleme held the castle of Alencon 'beneflcii iure' and tried to shake off ' serviminis iugum.' Luchaire, Institutions monarchiques sons les premiers Capetiens, i. 87, remarks that in the charters of the French kings beneficium is still common under Hugh Capet and Bobert 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 long time past. As to the inheritance of fiefs by females, the case of Mabel of Belleme is a capital instance. Women were inheriting fiefs in France from the end of the tenth century onwards; Luchaire, Manuel des institutions franchises, 167.

3 Ord. Vit., vol. ii. p. 470: 'Hugo Paganus Crassa Lingua et Agnes nxor eius atque Guido filius eorum concesserunt S. Ebrulfo viceeomitatum, id est viariam, quantam habebant in Villariis Vastatis.'

8 The early charter by which Richard the Fearless grants Bretteville to Saint Denis contains a full 'immunity'; Bouquet, ix. 731. Less explicit clauses of the same kind are found in the charters of Richard the Good for Fecamp and for Saint Michael of the Mount; Neustria Pia, 215-7, 377-8. • Another instance is afforded by the charter of William of BellSme for Lonlai; Nenstria Pia, 425. Observe also the words ' in pasnagio, in venationibus, in placitis' in the charter for Cerisi; Neustria Pia, 431.

CH. in.J Norman Law. 73

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 him1, and we may doubt whether in his own country the Conqueror had ever admitted that feudal arrangements made by his men could set limits to his jurisdiction*.

As to any constitutional restraints on the ducal power, the J^H*8 *? most' opposite opinions have prevailed. The duke of the power, earliest period has been everything, from the most absolute of monarchs to a mere first among equals8. 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 Normandy. 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 court4, and just as the English [p. 51] witan attest or confirm the king's grants, so the Norman proceres attest or confirm the charters of the duke6. In the lower courts also, so it would seem, the lord of the court is not the only judge; he is surrounded by doomsmen8.

1 See in Dado, Duchesne, 136-140, the panegyric on Richard the Fearless, also what William the Archdeacon of Lisieux, Duchesne, 193, says of the Conqueror.

2 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, almost invariably employed the English terms sake, soke etc.

8 The one extreme is marked by Palgrave, the other by Steenstrnp.

* Thus in or about 1077 a suit came before William's court; he orders the Archbishop of Bouen, Boger de Beaumont 'and many other barons' to make a judgment 'nt facerent inde indicium'; Memoires de la Societe des antiquaires de Normandie, vol. xv. pp. 196-7.

9 See e.g. Eichard 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.

6 In 1086 a suit is heard in the court of Robert of Bellfime; he presides, but

74 Norman Law. [BK. i.

Legal Probably the ordinary procedure of the courts was much

procedure. fae same fn 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 God1. One ordeal the Normans recognized which had no place in English law, namely, the ordeal of battle3. 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 the sworn inquest, the germ of the jury.

Criminal Perhaps criminal law, or what served as such, had reached

w' a later stage of development in Normandy than in England.

The great need of the time was that the ancient system of money compositions, of b6t and wer and wite, should give way before a system of true punishments, and in Normandy the alternations of rough anarchy and stern repression 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 Norman's wer and show no acquaintance with any Norman or Frankish [p. 52] criminal tariff8.

Ecclesiastj- We may be more certain that in another direction Norman cal law.

three abbots, nine named laymen, and many others are the 'iudices huius plaoiti'; Neustria Pia, 311.

1 The ordeal of fire occurs in the legend of Bollo; Dudo, Duchesne, p. 85. William Pantolf purged himself of the murder of Mabel of BellSme by carrying the hot iron; Ord. Vit. (ed. le Prevost) ii. 432. The ordeal is also mentioned in the statutes of the Council of Lillebonne; ibid. 322.

8 See William's charter for St Wandrille, Nenstria Pia, 168; the champions being ready for battle William interferes and makes peace. This is an early instance of a 'concordia per finem duelli.'

3 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. Henrici, 91 § 1; Edw. Conf. 15 § 6.

CH. in.] Norman Law. 75

law had outstripped English law along what must seem to us a destined path of progress. It had come in sight of an ecclesiastical 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 ' super-national' 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 satiable1. By the Conquest England was drawn into the mid-stream of a controversial 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 that which had come down to him from Norman dukes and Frankish kings. On the one hand, he would concede an ample room to ' the canons and episcopal laws;' on the other he would insist that the spiritual power should assume no right in England that it had not exercised in Normandy*.

One ecclesiastical institution there was in Normandy, which, The trace so William might hope, would hardly be necessary in England: ° the truce of God. In England the old family blood-feud was not dead, but it had not as yet developed into the feudal right of private warfare. In France a religious movement, which had its origin in the south, had been setting limits to this [p. 63] anarchical right by putting certain places and persons and seasons under the protection of the church and outside the limits of fair fighting. The truce of God had been received in Normandy; it reigned there after England had been conquered; but we only find very faint and uncertain traces in England either of it or of that tolerated private warfare which it presupposed8.

1 Hinschius, Kirchenrecht, iv. 797 ff ; v. 402; Brunner, D. B. G., ii. 311 ff.

a Eadmer, Hist. NOT. p. 9, just before he makes bis well-known statement about William's dealings with ecclesiastical matters, has said of him ' nsus ergo atqne leges qnos patres sui et ipse in Normannia habere solebant in Anglia servare volens.' His edict (Leg. Will, iv.) 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.

8 As to the treuga Dei in Normandy see Ord. Vit. (ed. le Prevost) ii. 316 and the editor's note; as to the truce generally gee Hinschins, Kirchenrecht, v. 305. In the so-called Leges Edwardi Confessoris, c. 2, we read that the peace of God

76 Norman Law. [BK. I.

Condition Of the condition of the great mass of the inhabitants of peasantry. Normandy, the tillers of the soil, we know singularly little; the chronicles have hardly a word to say about them, the charters do little more than mention their existence. 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 assembly1. This story, remarkable if true, is scarcely less remarkable if false, but the mere rebellion will make us believe that the Norman peasant was seldom a slave. It has been said by high authority that there are few traces of any serfage in Normandy even in the eleventh century, none [p. 54] in the twelfth*. The charters of the Conqueror's day frequently speak of hospites, coloni, rustiri, villani, rarely of servi, though now and again we have hints that some men and some lands are not deemed 'free'8. In later times Normandy was

prevails daring 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 JEthelred y. 18-19; 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 trevga Dei, but still 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 untraversable ornament. The peace of God was then conceived as existing always and everywhere. Of private warfare we shall speak hereafter.

1 The only good authority is William of Jumieges (Duchesne, 249); and he says very little; the poems of a later age cannot be trusted about such a matter. See Deliele, Etudes sur la condition de la classe agricole, 121; Freeman, Norman Conquest, i. 257 (ed. 3); Palgrave, Hist. Normandy, iii. 41; Steenstrup, Etudes prgliminaires, p. 346. These peasants have appeared in every character, from that of Gallo-Romans reclaiming Roman liberties to that of untamed Danes.

2 Delisle, op. cit. 17-19; Luchaire, Manuel des institutions, 295.

8 Thus in a charter of the Conqueror for Trinity Abbey at Caen: ' item in insula de Gerzoi unum molendinum et terrain duornm francorum hominum'; Neustria Fia, 659. So in a charter of the Conqueror for S. Stephen's Abbey at Caen, Neustria Pia, 626: ' Trado iuris mei...cum colonis et conditionariis sen liberis hominibus...Et homines quidem duarum premissarum villarum videlicet C. et E. qui francam terram non tenent ad servitium ecclesiae et monachorum...concede.' Delisle, op. cit. 17, 18, gives a few instances of servi in the eleventh century.

CH. in.] Norman Law. 77

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 in which there were many, for one in which the slave was still treated as a vendible chattel, and the slave-trade was flagrant.

The Normans then had no written law to bring with them Juris-to 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 letters1. His legal knowledge was probably the same in kind as that attributed, as we shall read hereafter, to the English bishop JEthelric and the monks of Abingdon, a knowledge of the law to be evoked by concrete cases, not a body of doctrine to be taught or written in a book. But the mention of Herlwin Lanfranc must remind us of Herlwin's prior, of Lanfranc the lawyer of lawyer. Pavia, of Lanfranc the Conqueror's right-hand man. Those who tell us of the great theologian, of the great disciplinarian, never forget to add that he was a lawyer of world-wide fame, the most accomplished of pleaders. Now, as we have already said, the Lombard lawyers, especially the lawyers of Pavia, had been [p. 55] engaged in a task well fitted to 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 conservative opponents, arguments which derive their force from the supposition that the dooms of King Liutprand and the institutes of Justinian are or ought to be harmonious3.

1 Vita Herluini, Lanfranci Opera, ed. Giles, i. 270: 'Abbas peritus erat in dirimendis causarum saecularium controversiis...Legum patriae scientissimus praesidium suis erat contra iniquos exactores.' Ibid. 265: 'Prima litterarum elementa didicit cum iam existeret annorum prope quadraginta.'

2 See above, p. 22.

s Lanfrano's juristic exploits are chronicled in the Liber Fapiensis, M. G.

78 Norman Law. [BK. I.

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 one of the discoverers of Roman law1. If he taught law at Avranches or at Bee2, 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 thoroughly that he carried all before him even when the talk [P. 56] was of sake and soke4, 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.

Leges, iv. pp. xcvi., 402, 404, 566. See also Ficker, Forschungen znr Oeschichte Italiens, iii. 47, 458. 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: 'Ado-lescens orator veteranos adversantes in actionibus causarum frequenter revicit, torrente facundiae accurate dicendo.'

1 Bobertus de Monte, ann. 1032, ed. Hewlett, p. 25: 'Lanfrancus Papiensis et Garnerius socius eins repertis apod Bononiam legibus Romania, quas lustiniauus imperator Bomanorum...emendaverat, his inquam repertis, operam dedernnt eas legere et aliis exponere.' Savigny, Gesch. des rom. Bechts, cap. xxvii. § 8, points out that the story cannot be true; Lanfranc must have left Italy before the days of Irnerius.

2 See Savigny, op. cit., cap. vi. § 135. Robert of Torigny (Bobertus de Monte), ann. 1117, ed. Hewlett, p. 100, tells how Ivo of Chartres, the famous canonist, had when a youth heard Lanfranc in the school at Bee 'de saeculari-bus et divinis litteris traotantem.'

3 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, nt maiora taceam, ludisque saecularibus quibus per totam diem vaeare diceris, divinas litteras lege, decretisque Bomanornm Pontificum sacrisque canonibus praecipue studium impende.'

4 See below, p. 93.



[p. 57] THE Norman Conquest is a catastrophe which determines Effects the whole future history of English law. We can make but Norman the vaguest guesses as to the kind of law that would have coniuest-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 slowly that the consequences of the great event unfold themselves, and they are not to be deduced from the bare fact that Frenchmen subjugated England. Indeed if we read our history year by year onwards from 1066, it will for a long time seem doubtful whether in the sphere of law the Conquest is going to produce any large changes. The Normans in England are not numerous. King William shows no desire to impose upon his new subjects any foreign code. There is no Norman code. Norman law does not exist in a portable, transplantable shape. English law will have this advantage in the struggle :—a good deal of it is in writing.

But then, the problem to which the historian must address No mere himself should not be stated as though it were a simple ™^ ™ ° ethnical question between what is English and what is French.tionallaw8-

[p. 58] The picture of two rivulets of law meeting to form one river would deceive us, even could we measure the volume and analyze the waters of each of these fancied streams. The law which prevails in the England of the twelfth century—this

80 England under the Norman Kings. [BK. i.

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 liken it to a chemical compound which is the result of a combination of 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 nobles becomes as potent a cause of legal phenomena as any old English or old Frankish traditions can be. Nor 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 w6rds. On many a theme an English man of letters may, by way of exploit, write a paragraph or a [p. 59] page and use no word that is not in every sense a genuinely English word; but an English or American lawyer who attempted this puritanical feat would find himself doomed to silence. It is true, and it Is Yvorthy of remark, that within the

CH. iv.] England under the Norman Kings. 81

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 more French than English. So too a few of the common transactions of daily Hfe 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 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, tort, 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, infant, ward, all are French. We enter a court of justice: court, justices, judges, jurors, counsel, attorneys, clerks, parties, plaintiff, defendant, action, suit, claim, demand, indictment, count, declaration, pleadings, evidence, verdict, conviction", judgment, sentence, appeal, reprieve, pardon, execution, every one and every thing, save the witnesses, writs and oaths, have French names. In the province of justice and police with its fines, its gaols and its prisons, its constables, its arrests, we must, now that outlawry is a thing of the past, go as far as the gallows if we would find an English institution. Right and wrong we have kept, and, though we have received tort, we have rejected droit: but even law [p. 60] probably owes its salvation to its remote cousin the French lei1.

1 The connexion between our law and the French lei or tot (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 legem) Eadwardi. But the two words attracted each other. We preserve the French droit in our 'droita of admiralty.'

P. M. I. 6

82 England under the Norman Kings. [BK. I.

straggle But all this is the outcome of a gradual process; we can not

Latin,6" say that it is the necessary result of the conquest of England IJrejJj*^ 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 you 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 English1. Again, there were 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 preserved2.

Latin as a During the century that follows, Latin keeps its pre- [p. 61] language, eminence, and when, under Henry II. and his sons, the time comes for the regular enrolment of all the king's acts and qf all the judgments of his court, Latin becomes the language of our

1 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 Croyland (Scriptores post Bedam, p. 512 b) is one of that forger's clumsiest falsehoods.

2 Maitland, Domesday Book, 8.

CH. iv.] England under the Norman Kings. 83

voluminous official and judicial records. From this position it is not dislodged until the year 1731, when it gives place to English1. It were needless to say that 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 day2. In particular, Latin remains the language in which judicial proceedings are formally recorded, even though they be the proceedings of petty 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 upstart8.

But, though throughout the middle ages some Latin could struggle be written by most'men who could write at all, and the lord of Frenchana a manor would still have his accounts as well as his court rolls En8lish-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 might 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 French, his prelates French, and even when barons and prelates [p. 62] were beginning to think of themselves 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 meanings ;

1 Statute 4 Geo. II. c. 26.

2 Our first parliament roll comes from 1290 and there is some French on the roll of 1293; Rot. Parl. 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 127S has been lost, this also was covered with French writing.

3 Stat. 16 Car. I. c. 10, abolishing the Star Chamber, solemnly recites the Statute 36 Edw. in. 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.


84 England under the Norman Kings. [BK. i.

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 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 decides the fate of words. Slowly but surely justice done in the king's name by men who are the king's servants becomes the most important kind of justice, reaches into the remotest corners of the land, grasps the small affairs of small folk as well as the great affairs of earls and barons. This is no immediate and no necessary effect of the Norman Conquest. It would never have come about if the nobles 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 of Anjou was king.

Victory of If we must choose one moment of time as fatal, we ought to choose 1166 rather than 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:— already men hardly know what these words mean1. It is difficult for us to believe that in the local courts, the suitors, who [p. 63] 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

1 Even the earliest and purest glossaries of A.-S. law terms, the Expositions! Vocabulorum, prove this ignorance. As to these glossaries, see Hall, Bed Book of the Exchequer, vol. iii. Introduction.

CH. iv.] England under the Norman Kings. 85

any similar books written in English1. 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 Hall2. 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 tongue8. But this came too late. It could not break the Westminster lawyers of their 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 ball'; but the number of such terms was small and the blight of archaism was on them6.

Meanwhile men had begun to write French and to write French it for legal purposes. Legal instruments in French come to ocnmen "' [p. 64] us but very rarely, if at all, from the twelfth century'; they

1 The Court Baron (Seld. Society).

3 The Court Baron, pp. 38, 42. 3 36 Edw. in. Stat. i. c. 15.

« Bobert of Gloucester, lines 9650-9730.

9 Wycliffite Translation of the Bible; Matth. vii. 1 ' for in what dome je demen, je scnlen ben demed"; Matth. xxvii. 19 'and while he [Pilat] sat for domesman'; Mark xv. 16 ' the porohe of the mote halle.'

• The volume of Sarum Charters (Bolls Series), p. 5, contains what at first looks like an 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 there is some mistake here. A French charter of Stephen Langton entered on the Charter Boll of 10 John is given in facsimile by Hardy, Bot. Cart. p. xli.

86 England under the Norman Kings. [BK. i.

become commoner in the thirteenth and yet commoner in the fourteenth, but on the whole Latin 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 1258 Henry III. declared both in French and in English his acceptance of the provisions which were forced upon him in the parliament at Oxford1. But while this English proclamation long remains unique, 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 statutes roll5, 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 an insidious attack. Petitions to parliament are sometimes presented in English, and 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 veult3.

1 The proclamations will be found in the Select Charters.

2 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, and is also on the patent roll.

3 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 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 be earlier—for but few of the extant petitions are printed or dated— a petition to parliament might be written in English (Rot. Parl. 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.

CH. iv.] England under the Norman Kings. 87

[p. 65] Again, in the thirteenth century French slowly supplanted p*1** 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 tracts1, 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 if we would read a technical law-book that was written in English*.

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 Sachsen-spiegel, 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

[p. 66] a concurrence of many causes was requisite to produce some of those effects which are usually ascribed to the simple fact that the Normans conquered England8.

1 Court Baron (Seld. Society), p. 11. See also the Brevia Plaeitata which are now being edited by Mr Turner.

2 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 Fortescue'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.

3 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

88 England under the Norman Kings. [BK. i.

Preserve- We may safely say that William did not intend to sweep EngKsh° away English law and to put Norman law in its stead. On the tew- 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 The Con- certain additions which he, William, had made to it1. So far legislation, as we know, he expressly legislated about very few matters. 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 without his leave, no canons were to be enacted and none of his barons or ministers excommunicated2. He declared that his peace comprehended all men both English and Normans3. He required from every free man an oath of fealty4. 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 reign6. He defined the procedural rules which were to prevail if a Frenchman accused an Englishman, or an Englishman a Frenchman6. 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 court7. He forbad that cattle should be sold except in the towns and before three witnesses. He forbad that any man should be sold out of [p. 67] the country. He substituted mutilation for capital punishment8. 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.

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.

1 Laws of William (Select Charters), c. 7. ;

2 Leg. Willelmi, iv.; Eadmer, Hist. Nov, p. 10. s Laws of William (Select Charters), c. 1.

4 Laws, c. 2; A.-S. Chron, an. 1086; Florence, ii. 19.

» Laws, c. 3, 4; Leges Will. I. 22. 6 Laws, c. 6 ; Leges Will. n.

' Laws, c. 7, 8. 8 Laws, c. 5, 9, 10.

CH. iv.] England under the Norman Kings. 89

In the long run by far the most important of these rules will Character be that which secures a place in England for the canonical Sam'siaws. 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 prohibiting secret sales1. 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 punishment4. Whether the king could exact an oath of fealty from all men, even from the men of his men, was a question of power rather than of right6. 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 comes from no good source, that Cnut had protected his Danes by a fine similar to that which was now to protect the Normans'. Again, [p. 68] the procedure in criminal cases is by no means unfavourable to the men of the vanquished race. The Englishman whom a Frenchman accuses has the choice between battle and ordeal.

1 The precedents are collected in Schmid, Glossar, s.v. Marktrecht.

2 .Ethelred, v. 2; Cnnt, n. 3. 3 Cnut, n. 20. 4 JSthelred, v. 3; vi. 10 ; Cnut, n. 2.

6 Edmund, in. 1.

6 Leg. Will. in. 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 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 Salica, 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. Liebermann, Leges Edwardi, p. 112, rejects the story about Cnut.


90 England under the Norman Kings. [BK. I.

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 peer1.

Person^ or jn different ages and circumstances the pride of a conquer-law. ing race will show itself in 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 barbarous, barely Christian, and Welshmen must be made into [p. 69] Englishmen3. In older and less politic days all will be otherwise. 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 birthright of the men of the tribe,

1 Laws of William, c. 6; Leges Willelmi, n. 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 afte,' 'Sacramento non fracto.' This is a difficult phrase. Apparently a 'broken' or 'breaking' oath is an oath sworn 'in verborum observantiis,' and is an oath broken up into phrases, each of which must be repeated with punctilious accuracy by the swearer as it is dictated to him by his adversary. Dr Brunner sees in William's law a provision that the Norman need not swear in words dictated by an Englishman. Brunner, Zeitschrift d. Savigny-Stiftung, Germ. Abt. xvn., 128, and Pol. Science Quarterly, xi. 537; Forschungen, 328.

2 Eegister of Abp. Peckham, i. 77: 'leges Howeli Da quae Decalogo dicuntur in diversis articulis obviare."


CH. iv.] England under the Norman Kings. 91

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 imprisonment1. But it was too late for a system of ' personal,' that is of racial laws. Even in France 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 be [p. 70] proved2. 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 procedure had lost its force*. No doubt William and his sons distrusted

1 Orderio (ed. le Prevost), ii. 264. Dr Stubbs, Const. Hist. i. 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 Orderic (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. 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 'Interdict) ne quis occidatur' does not bind the man who says it.

8 Leg. Henr. 92 § 6.

8 In Domesday Book Englishmen are offering proof by battle; Bigelow, Placita Anglo-Normannica, 43, 60. The Leges Henrici no longer make any distinction between the two races in this matter, though they still allow Frenchmen and aliens to swear with less accuracy than would be required of an Englishman: Leg. Hen. 64, § 3.

92 England under the Norman Kings. [BK. i.

the English; even Henry would suffer no Englishman to be abbot or bishop1. 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 another. Mainte- Indeed the capital instance of harsh treatment consists in

nance of f

English an application of the theory that they have not been conquered

by 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 forfeitures, so far from clearing the way for pure Norman land law, had the effect of bringing even the Norman barons under English land law. Here a combination might be made of all that was favourable to the duke in the Norman, 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 than any that had as yet been concluded in Normandy. On the other hand, the king was going rigorously to 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 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 succeeded to the duties of his English antecessores. Moreover, [p. 71] 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 included rights of a jurisdictional kind, 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. 1 Eadmer, Hist. Nov. 224.

CH. iv.] England under the Norman Kings. 93

All this made English testimony and English tradition of The importance; the relative rights of the various Norman magnates facoort. were known only to Englishmen. Englishmen were mixed up with Frenchmen at the moots and often spoke the decisive word. The aged JSthelric, 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-fyrrriS1. Eadric the steersman of the Confessor's ship, and Kineward who had been sheriff of Worcestershire, Siward of Shropshire, 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 them*. 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 Edward8. The abbot of Abingdon was protected in his possessions by the learning and eloquence of lawyerly English monks, whose arguments were not to be withstood4.

On the other hand, it is not to be denied that the few Norman legal ideas and institutions which we can confidently describe mstftu.n [p. 72] as imported from Normandy, were of decisive importance. This tlons-is pre-eminently true of the transplanted Frankish 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, and, 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 disputable question, that cannot be here discussed, but

1 Selden's Eadmer, 197; Plac. Anglo-Norm. 7.

2 Heating's Cartulary, L 82; Plac. Anglo-Norm. 18.

3 Hamilton, Inquisitio Cantabr. pp. xvii, xviii; Plac. Anglo-Norm. 22.

4 Hist. Abingd. ii. 2; Plac. Anglo-Norm. 30: 'sed et alii plures de Anglie causidici per id tern pus in abbatia ista habebantur.' This does not imply the existence of men who are lawyers by profession.

94 England under the Norman Kings. [BK. i.

undoubtedly the conquest, the forfeiture, the redistribution of the land gave to the idea of dependent and derivative tenure 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. 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. 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 charters are very like those which Edward and Cnut had issued, and very unlike those of Henry II1. 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 much in the subjection [p. 73] 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 baronage2.

Rufus. During the whole Norman period there was little legislation.

We have spoken of the Conqueror's laws. It seems probable that Rufus set the example of granting charters of liberties to

1 Stevenson, E. H. B. xi. 731: an important contribution to English diplomatics.

2 Dr Brunner, Zeitschrift d. Savigny-Stiftung, Germ. Abt. xvii. 125, in reviewing the first edition of this book, says that in his opinion we have underestimated the influence of Norman law and somewhat overrated the originality of Henry II.'s legislation. It may be so. The question is very difficult and we fully admit that in any case our private law and law of procedure have many French traits. The English element is at its strongest in political structure, e.g. in the non-feudal county court.

CH. iv.] England under the Norman Kings. 95

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 maintained1. Whatever promises he made, he broke. His claim upon the historians of English law is of another kind: for he surely built her an house to dwell in. Englishmen were proud of his work at Westminster. Search the wide world round, they said, there is no such hall for feast and plea

Aulam maiorem construxit Londoniarum, Orbis terrarum non optinet utiliorem ludicibus legis, ac ad convivia regis, Begum regnorum flos est domus ilia domorum2.

The verses are rude but have the right ring in the ears of English lawyers.

Henry at his coronation, compelled to purchase adherents, Henry I. granted a charter full of valuable and fairly definite concessions8. 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,

1 Eadmer, Hist. Nov. pp. 31-2.

a These lines were probably written in John's day. They occur in a legal compilation discovered by Dr Liebermann: Leges Anglorum, Halle, 1894, p. 67.

* Charters of Liberties (Statutes of the Bealm, vol. i.), p. 1; Select Charters. Liebermann, Trans. B. Hist. Soc. viii. 21, gives a critical text.

96 England under the Norman Kings. [BK. I.

evolved a law for the tenants in chief which was perhaps the severest in Europe1. This was done in silence by the accumulation of precedent upon precedent. For the rest, we know that Henry, early in his reign, issued a writ declaring that the county [p. 74] 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 issued 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 taking his own arm as the standard ell; but we depend on the chroniclers for our knowledge of these acts, and as yet they are not careful to preserve the words of the lawgiver'. We have, however, a writ in which he speaks of the ' new statutes' which he had made against thieves and false moneyers4.

Stephen. 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 and just and ancient customs, as to murder fines,

1 The Pipe Boll of 31 Henry I. was edited by Hunter for the Record Commissioners. We shall hereafter have more than one occasion to remark on the relation that it bears to the charter of 1100.

2 The writ is given in the Select Charters; see Liebermann, Quadripartitus, p. 165.

3 Legislation in 1108 about theft and coining: Florence, ii. 57; cornp. A.-S. Chron, an. 1124, and Foedera, i. 12. Legislation against abuses of royal purveyance and against bad money: Eadtner, Hist. Nov. 192-3; Will. Malmesb. Gesta Begum, ii. 476. Legislation about wreck: Chron, de Bello, 65; Plac. Anglo-Norm. 144. 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 Henrici, of which hereafter.

4 Historians of Church of York, iii. 22 : 'et nova statuta mea de iudiciis sive de placitis latronum et falsomm monetariorum exequatur et finiat [archiepi-scopus] per suam propriam iustitiam in curia sua.'

5 Charters of Liberties (Statutes of the Healm, i.), p. 4; Select Charters; Stubbs, Const. Hist. i. 346.

CH. iv.] England under the Norman Kings. 97

pleas and other matters,' and that he would extirpate the unjust exactions introduced by the sheriffs and others. More specific promises made to the church, besides the large and dangerous promise that she should be ' free1.' In the ecclesiastical sphere there had been a good deal of 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 reluctant clergy. It was in the ecclesiastical council, [p. 75] rather than the king's court, that the spirit of reforming legislation was once more active2.

The best proof, however, of the perdurance of the old The law-English law is given by what we may generically call the law- . Lege™ books of the Norman period. The Conqueror had amended and confirmed the laga Eadwardi; 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 code of Cnut and in the yet earlier dooms. But the language in which they were written was unintelligible to Frenchmen, and was fast becoming unintelligible 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 Eadwardi. 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 docu- Genuine ments which profess to give us, not the old law, but the results william I. of William's legislation, the documents from which we have

1 Charters of Liberties, p. 5; Select Charters; Stubbs, Const. Hist. i. 347. As to the date of these charters, see Bound, Geoffrey de Mandeville, 438.

2 As to the ecclesiastical legislation, see Stubbs, Const. Hist. i. 404.

s 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.

P. M. I. 7

98 England under the Norman Kings. [BK. I.

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 I the temporal courts1. We have in English as well as in Latin

ji the ordinance about criminal accusations brought by men of the

| one race against men of the other2. Lastly, we have a set

- of ten brief paragraphs dealing with the oath of fealty, the

murder fine, the abolition of capital punishment and the other [p. 76] matters which have already come before us. These ten laws may not have been collected until .some time after the Conqueror's death, and it is more than probable that we have not the words that he used; but the collection seems to have been made early in the twelfth, if not before the end of the eleventh century, and the result is trustworthy. At a much later date some one tampered with this set of laws, interpolated 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 the logo, Eadwardi. 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 hia 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 Archbishop Gerard of York. We have more than one edition of his work; these can be distinguished from each other by the author's increasing mastery of the English language, though to the end he could perpetrate bad mistakes. As the work went on, he conceived the project of adding to his Latin version of the ancient dooms three other books and calling the whole Liber Quadripartitus. The first book was to contain the old English

1 This is Leges Willelmi rv. of Thorpe and Sehmid.

2 This is Leges Willelmi n. of Thorpe and Sehmid.

3 The set of ten laws is that printed by Dr Stubbs in his edition of Hoveden, vol. ii. p. ci, and again in the Select Charters. It may be conveniently referred to as Hie intimatur. 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 justiciarship. Liebermann, Quadripartitus, p. 145, mentions the MSS. which give it and says that it was compiled after 1087 and before 1135. A French version of it from cent. xii. he gives in Zeit-schrift fur romanische Philologie, xix. 82. The expanded form of it is Leges Willelmi HI. of Thorpe and Sehmid. Dr Liebermann takes this to be the work of a Londoner of John's reign, who deliberately tampers with his documents: Ueber die Leges Anglorum, p. 32 ff.

CH. iv.] England under the Norman Kings. 99

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 first and second books we have. The second 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 [p. 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 entertained, 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, translated honestly if unintelligently. 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 antiquarian1.

Closely connected with the Quadripartitus is a far more Leges important book, the so-called Leges Henrici. It seems to have Sennct-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 b$ 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

1 We have here tried to sum up very briefly the results attained by Lieber-mann, Quadripartitus, Halle, 1892.


100 England under the Norman Kings. [BK. I.

is 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 overweight him ; he cannot 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 took much from the code of Cnut and from some of the older dooms, but unless (this is [p. 78] 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 native 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 Code1. But the most interesting parts of his work are those which we can trace to no remoter fount. If they paint English law as a wonderful confusion, they may yet be painting it 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,

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 Romana Visigothorum, p. 228. This citation, which may be the outcome of literary vanity, has been offered as proof of the prevalence of Roman law in England; but the fact that our author had a Roman book and took but one sentence from it, is really a strong testimony to the thoroughly un-Roman charaeter of the English law of his day. It is quite possible that he had but a single volume of foreign temporal law. The Salica and Ribuaria occur in MS. along with epitomes of Alaric's Breviary.

CH. iv.] England under the Norman Kings. 101

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 11181.

[p. 79] The writer of the Leges Henrici is in some sort the cham- The Con-pion of West Saxon, or rather of Wessex law. Wessex is in his "irutitMb? opinion the head of the realm, and in doubtful cases Wessex CnMii-law should prevail2. 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 contained in the Quadripartitus, were made, and in each case by one who 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 remarkable 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 speech8. At a later date, some forest laws were concocted for Cnut, but to describe these we must use a harsh 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 kings4.

Then we have another document which professes to give us Les Leis the old laws, the laws which King Edward held and which tliame'

1 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 deutschen Geschichte (1876), vol. zvi. p. 582. Bis conclusion is accepted by Stubbs, Const. Hist. i. 333 (ed. 1883). Two mistakes should be avoided. (1) Our author is not forging laws for Henry I.; the title Leges Henrici refers only to the coronation charter with which he begins his book. (2) He is not pretending to set forth the laga Eadwardi as it stood in Edward's day; he states it in what he thinks to be its modern and practicable shape. The inference that he was a man of English race has been drawn from a passage, 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 small.

8 Leg. Henr. 70 §1; 87 § 5.

3 These two tracts are Consiliatio Cnuti, published by Liebermann at Halle in 1893, and Instituta Gnuti aliorumque Begum Anglorum, communicated by him to the Eoyal Historical Society in the same year ; Transactions, vii. 77.

4 Constitutiones de Foresta, Schmid, p. 318. Liebermann, Ueber Pseudo-Cnuts Constitutiones de Foresta, Halle, 1894.

102 England under the Norman Kings. [BK. i.

King William granted to the people of England. We have it both in French and in Latin, and to distinguish it from its fellows it has been called the bilingual code. We shall call it the Leis Williame. Its history is obscure 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 the French text may have been made from a Latin or from an English original. That we have here no authoritative 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 the Norman novelties, [p. so] It is an intelligent and to all seeming a trustworthy 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 large maxims 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 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 jurisprudence which would deliver them from their practical and intellectual difficulties1.

1 The document in question is the Leges Willelmi i. of Thorpe and Schmid. For the history of the MSS. which gave the French version see the article in Quarterly Review, No. 67, p. 248, in which Palgrave exposed the Ingulfine forgery, also Liebermann's Ostenglische Geschichtsquellen. We are deeply indebted to Dr Liebermann for a valuable letter dealing with these Leis.

CH, iv.] England under the Norman Kings. 103

[p. 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 sons' the various parts of England1. However, the purest form in which we have it speaks of what was done in the reign of William Rufus*, and probably was compiled in the last years of Henry I.'. 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, perhaps a secular clerk of French parentage, writes in the interest of the churches, and, it is to be feared, tells lies for them*. He professes to hate the Danes of the past and the Danelaw. According to him, William, being himself of Scandinavian

That the French text is the origin of the Latin is plain from several passages, in particular from c. 45 when compared with Cnut, n. 24 (the Latinist thinks that voest means 'let him see,' whereas it means 'let him vouch'). On this point see Liebermann, Quadripartitns, p. 54. The Latin version is sometimes exceedingly stupid; see e.g. the 'idoneos cultores' of c. 31. The text has 52 chapters. From c. 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 Roman influence:—c. 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 Shodia de iactu (Dig. 14, 2); c. 38, the eviction of one co-parcener does not prejudice the rights of the others, being res inter alias acta (Cod. 7, 56, 2). To these we may add c. 34, the division of an inheritance among all the children; this, unless enfant means sons, can hardly be English or Norman law, and is surrounded by romanesque sentences. Perhaps we ought 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 Roman coloni. Thus we are brought to the end of c. 28, where the only now extant us. of the French version ends. As to the Danish traits of the earlier articles, see Steenstrnp, Danelag, pp. 59, 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 shall not readily believe that even the first section of it comes from the Conqueror. As to the character of the French text, this must be left to philologists, but the result of recent discussions seems to be that, though the language has been much modernized by transcribers, it has some very ancient traits.

1 This is the Leges Edwardi Confessoris of Thorpe and Schmid. See Liebermann, Leges Edwardi, Halle, 1896.

* Leges Edwardi Confessoris, c. 11.

9 Liebermann, op. cit. p. 16.

4 The exemption from Danegeld of ecclesiastical demesnes, as stated in c. 11, is, to say the least, exceedingly doubtful. See Bound in Domesday Studies, i. 95-6.

104 England under the Norman Kings. [BK. i.

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 romancer strive to blacken the memory of Cnut, the great lawgiver. Little, if any, use is made of the Anglo-Saxon dooms; loose, oral tradition is the author's best warrant. Unfortunately, however, the patriotic and ecclesiastical leanings of his book made it the most popular of all the old lawbooks1. In the thirteenth century it was venerable; even Bracton quoted from it2. A second and more polished edition of it was soon made by its author's or another's hand; also there is a French version. And then men added to it other pious 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 supported by other evidence, will hardly tell us more than that some man of the twelfth century, [P. 82] probably some man of Henry L's day, would have liked those statements to be true8.

Character The picture that these law-books set before us is that of an

of the law . r . .

disclosed ancient system which has received a rude shock from without

by the

Leges. i gove(jeni ij 218, takes it up into his chronicle.

* Bracton, f. 134 b. Liebermann, op, cit. 122.

3 Dr Liebermann spoke of this work some time ago in his Einleitung in den Dialogus de Scaccario, pp. 72-7. He has lately written an exhaustive essay about it. 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 (c. 35 § 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, and probably lived in or near Warwickshire. A French translation of the work exists in MS. but has not yet been printed. For specimens, see Liebermann, Zeitschrift fur rornanische Philologie, xix. 83. 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, like Domesday Book, have been officially preserved, and there would have been no room for such works as the Leges Henrici and the Leis Williame. Since the first edition of our book was published Dr Liebermann (Leges Edwardi, p. 45) has decisively rejected the tale.

CH. iv.] England under the Norman Kings. 105

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 a man may find something useful in the new science of the canonists, in the aged Lex Salica, in vague rumours of Roman law which come from afar. Any rule that looks authoritative and reasonable is welcome; we may say that it is law because it ought to be law. But in the main we must make the best of the dooms of Cnut and the older dooms. And the difficulty of making imich that is good of them is not 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 or from [p-83] the Germany of the first years of the twelfth century we could have a law-book, it would not be very simple or elegant or intelligible. As it is, our neighbours have little to show between the last of the capitularies and those feudal law-books which stand on a level with our own Glanvill. While the complex process which we call feudalism is transmuting the world, no one issues laws or writes about law. If in England it is otherwise, this seems to be chiefly due to two causes:—In England the age of the capitularies had not ended; but lately Cnut had legislated on a scale which for the eleventh century must be called magnificent. And then that very collision between two races which makes the law-books disorderly and obscure has made them necessary. The laga Eadwardi is confirmed. Even clerks of Norman race wish to know what the laga Eadwardi is.

These law-books have, we may say, one main theme. It is Practical

. problems

a very old theme. An offence, probably some violent offence, in the


106 England under the Norman Kings. [BK. I.

has been committed. Who then is to get money, and how much money, out of the offender ? It is the old theme of wer and wite and hot. But the criminal tariff has become exceedingly 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 difference which would have its equivalent in modern 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 FitzOsbom, was that no knight should have to pay more than seven shillings for any offence1. Becket asserted even in the king's court that the heaviest amercement known to Kentish law was forty shillings*. But the country was becoming covered with small [p. 84] 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

1 Will. Malm. Gesta Begum, ii. 314. Malmesbury says that in his own day FitzOsbern's rule still prevailed.

1 Will. FitzStephen (Materials for Life of Becket, iii.), p. 62.

CH. iv.] England under the Norman Kings. 107

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 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 a (p. 85] 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 causidicus1.'

Only to one quarter can we look hopefully. Above all Custom of local customs rose the custom of the king's court, 'the tremen- ^tngs dous empire of kingly majesty*.' Of the law that this court administered we know little, only we may guess that in a

1 This famous phrase comes from a rhetorical passage in which William of Malmesbury is describing the days of Knfus; Gesta Begum, ii. 369: ' Nullns dives nisi munmularius, nullus clericus nisi causidicus, nullus presbyter nisi, at verbo parum Latino utar, nrmarius.' He has just called Eanulf Flambard 'invictns causidicus.' But, as noticed above, these causidici were not all of French race.

2 Leg. Henr. 9 § 9: ' Legis enim Angliae trina est partitio; et ad eandem distantiam snpersunt regis placita curiae, quae usus et consuetudines suas una semper immobilitate servat nbique.' Ibid. 6 § ?: ' Legis etiam Anglicae trina est partitio...praeter hoc tremeudum regiae majestatis titislamus (?) imperium.'

108 England under the Norman Kings. [BK. I.

certain sense it was equity rather than strict law. On the one hand, the royal tribunal cannot 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 English 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-English and therefore distinctively Norman, and Norman in a [p. 86] sense it was1. 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 Frenchmen 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. Boyai The future was to make the jurisprudence of the king's

jus ice. 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 confined the scope of royal justice to

1 Dialogus, lib. i. c. xvi.: 'Bex Willelmns...decrevit subiectum sibi populum iuri seripto legibusque subicere. Propositis igitur legibus Anglicanis secundum tripartitam earum distinctionem, hoc est Merchenelage, Denelage, West-saxeuelage, quasdam reprobavit, quasdam autem approbans, illas transmarinas Neustriae leges, qnae ad regni pacem efficacisimae videbantur, adiecit.'

CH. iv.] .England under the Norman Kings. 109

certain particular fields. The list of the ' pleas of the crown' was long, disorderly, elastic1; 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 shiremoots5. 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 [p.87] crown. It was in such assemblages that the king's justice was done under his own eye, and no doubt he had his way; still it was not for him to make the judgments of his court4. 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 sheriffs' 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 tbese clerks, besides having long experience as financiers and administrators, must have had a

1 Leg. Henr. c. 10.

3 Early instances of the king's misri presiding in the local courts are these:— the Bishop of Contances presides at the famous session on Penenden Heath: Plao. 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 Boll of Henry I. were probably payments made for evocatory writs; see Plac. Anglo-Norm. 140-2.

3 Apparently as a general rale 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. c. 10 § 3.

4 Even Rufus 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.

110 England under the Norman Kings. [BK. i.

tincture of the new canonical jurisprudence1. But, for all this, when Henry died little had yet been done towards centreing the whole work of justice in one small body of learned men. 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 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.

3 As to the king's court and exchequer, see Stubbs, Const. Hist. c. zi., and Gneist, Geschichte, § 10.




[p. 88] IN any case the restoration of order after the anarchy of Contact of Stephen's reign and the accession to the throne of a prince with who would treat England as the buttress of a continental andcanon empire must have induced a critical period in the historylaw> of English law. But we must add that in any case the middle of the twelfth century would have 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 cosmopolitan 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.

[p. 89] We have told above how Irnerius taught at Bologna1. Very 5®^^ °* soon a school had formed itself around his successors. The fame law. of 'the four doctors,' Bulgarus, Martinus, Jacobus, Hugo, had gone out into all lands; the works of Placentinus were copied at Peterborough. From every corner of Western Europe students flocked to Italy. It was as if a new gospel had been revealed. Before the end of the century complaints were loud that theology was neglected, that the liberal arts were despised, that Seius and Titius had driven Aristotle and Plato from the schools, that men would learn law and nothing but

1 See above, p. 23.

112 Roman and Canon Law. [BK. I.

law1. 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.

Cosmopoli- The keenest minds of the age had set to work on the

of Roman classical Roman texts and they were inspired by a genuine love of knowledge. Still they were far from regarding their study as mere historical research; indeed for a critical examination of ancient history they were but ill prepared. The Roman law was for them living law. Its claim to live and rule was intimately connected with the continuity of the empire. A vast part, if not the whole, of the civilized world [p. 90] 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 to press the claims of a German prince, the king might theoretically be 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.

Growth of Another body of jurisprudence was coming into being.

canon w. proin numb]e beginnings the canon law had grown into a mighty system. Already it asserted its right to stand beside or above the civil law. The civil law might be the law of earth, ius soli; here was the law of heaven, ius poli. The time had now come when the Hildebrandine papacy could insist that, subject to small variations, the universal church had a common law. Many men had been endeavouring to state that law, but the fame of earlier labourers was eclipsed by that of [p. 91] Gratian*. A monk of Bologna, that city which was the centre of the new secular 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 Concordia discordantium canonum, but which was soon to become for all mankind simply

1 See the passages collected by Holland, E. H. B. vi. 147-8. 1 Quadripartitns, p. 149; Leg. Henr. preface.

9 For the matter of this paragraph, see Schnlte, Gesohichte der Quellen des Canonischen Rechts.

CH. v.] Roman and Canon Law. 113

the Decretum Gratiani, or yet more simply the Decretum1. It is a great law-book. The spirit which animated its author was 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 the 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 from the fathers and the Bible. The Decretum soon became an authoritative 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. A sure base had now been found for the new science. Gratian became the master of a school, a school of lawyers well grounded in Roman law, many of them doctors utriusqiw iuris, who brought to bear upon the Decretum and the subsequent decretals the same methods that they employed upon Code and Digest. Legists and decretists alike looked to Italy for their teachers; but the papal system was even more cosmopolitan than the imperial; the sway of the Roman church was wider than that of the Roman empire. Gratian, 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. and Innocent III., Gregory IX. and Innocent IV.

Gratian had collected decretals down to the year 1139. The But the time had now come when the popes were beginning to pour out decretals for the whole of western Christendom in [p. 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 work2; but they were all set aside by a grand collection published by Gregory IX. in 1234. This was

1 As to the date, see Schulte, i. 48.

2 Scfiulte, i. 84, 85, 88, 187-9. Among the compilations which 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.

P. M. I. 8

114 Roman and Canon Laic. [BK. I.

an authoritative statute book; all the decretals of a general import that had not been received into it were thereby repealed, and ever}7 sentence that it contained was law. It comprised five books. In 1298 Boniface Vill, 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 future. Another collection of decretals known as the Clementines (they had proceeded from Clement V.) was added in 1317, and in 1500 the Corpus luris Canonici was completed by yet another collection—this had no statutory authority—known as the Extra-vagants; but by this time canon law had seen its best days. We must yet say a few more words of its vigorous maturity1.

The . , It was a wonderful system. The whole of western Europe

canonical . . . ." . .

system. was subject to the jurisdiction of one tribunal of last resort, the

Roman curia. Appeals to it were encouraged by all manner of means, appeals at almost every stage of almost every proceeding2. 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 commissioned to hear and determine this or that parti- [p. 94] cular case3. 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 ignorance of law. Very many of the decretals are

1 It may be well to explain that after the compilation of Gratian's work, the decretals not contained in it were known as decretales eitravagantet, i.e. quae vagabantur extra decretum. Even after they had been collected by Gregory they were cited as Extra or X. Thus Extra de retcriptit c. ex parte, or c. 2. A" de rescript. 1. 3, is a reference to the Gregorian collection. The Sext is referred toby in vi"; the Clementines by Clem.; the collection of Extravagants published in 1500 consists partly of Extravagantes Johannis XXII. (Extrar. Joh. XXII.). partly of Extravagautes Communes (Extrar. Comm.). ,

- AVe speak of the middle of the twelfth century; before its end even the popes perceive that limits must be set to the appeal.

s Maitland, Canon Law in England; E. H. E. vol. xii.

CH. v.] Roman and Canon Law. 115

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 importance, not merely to the parties immediately concerned, but to all the faithful, for the canonist would treat as law in other cases 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 wide and vague limits could be set. Each separate church might have its customs, but there was a ius 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 lawyer1. 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 [p. 95] in England, he treated them as part and parcel of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hostiensis, Durandus and the rest. On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with 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 presbyter orum ordinandis 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

1 This point has been argued at length in E. H. K. xi. 446, 641.


116 Roman and Canon Law. [BK. I.

way to Rome, he was like to be told by the pope that his doctrine was the product of English beer, and might carry home with him a rescript which would give the English bishops a sound lesson in the law of prescription1.

Eelation of The relation between the two great systems was in the Roman twelfth century very close. The canon law had borrowed its law' 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 church could not approve. Thus, for example, the law of marriage 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 heavy; 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 L's day the monks of Canterbury went to law with the archbishop; a statement of their case has come down to us; probably it was Qp-96] drawn up by some Italian; it contains eighty citations of the Decreturn, 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 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 hardly a word of popes. If they could have had their way, the civil law would have been but the modest handmaid of the canon law*. But in the days of our King Stephen the imperial mother and her papal daughter were fairly good friends. It was hand in hand that they entered England.

1 Chron. Abb. de Evesham, p. 189: 'Pater sanete nos didicimus in scholis, et haec est opinio magistrorum nostrorum, quod non currit praescriptio contra iura episoopalia.' Et dominus papa, 'Certe et tu et inagistri tui multum bibistis de cerevisia Anglicana quando haec didicistis.' The result is found in c. 15, X. 2. 26.

- Epistolae Cantuarienses, p. 520. 3 See below, p. 122.

CH. v.] Roman and Canon Law. 117

The history ef law in England, and even the history of Komanand English law, could not but be influenced by them. Their law in action, however, hardly becomes visible until the middle of the Eng an ' 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 Leis Williame seems to have heard a few Roman maxims, all this belongs to the pre-scientific era1. If William of Malmesbury, when copying a history of the Roman emperors, introduces into his work a version of the Breviary of Alaric, he is playing the part of the historian, not of the jurist2. 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 Bologna3. 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 known no Roman [p. 97] law. Lanfranc's pupil Ivo of Chartres, the great canonist, knew much Roman law4 and becomes of importance in English history; it was his legal mind that schemed the concordat between Henry I. and Anselm6. 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-

1 See above, pp. 100, 102.

2 Mahnesbury's connexion with this work is discussed by Dr Stnbbs in his introduction to the Gesta Begum, i. cxxxi ff. The work itself is described by Hanel, Lex Romana Visigothorum, p. IT. See also Conrat, Geschichte der Quellen des R. B., i. 232.

3 See above, p. 78.

* Bob. de Torigny, p. 100; Savigny, Geschichte, cap. 15, §106; Conrat, Geschichte, i. 378.

* Liebermann, Anselm von Canterbury, p. 41.

6 Monasticon, i. 244-250: ' Christianam legem quam hie scriptam habeo testem invoco.'

118 Roman and Canon Law. [BR. i.

advised attack on Roger of Salisbury arid the other bishops, once more the exceptio spolii was pleaded, again the demand for a canonical tribunal was urged, and the king himself appealed to the pope1. The time when Gratian was at work on the Decretum, when 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.

Vacarius. At this time it was that Archbishop Theobald, at the 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 Gratian2—imported from Italy one Vacarius8. The little that we know of his early life seems to point to Mantua as his home and a short tract on Lombard law has been ascribed to him. It is not unlikely that Theobald availed himself of the help of this trained legist in his struggle with [p-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 Roman law in England there can be no doubt; a body of students looked up to him as their magister and reverently received his glosses4. That he taught in the archbishop's household, which was full of men who were to become illustrious in church and state, is highly probable. That he also taught at Oxford, where a school was just beginning to fqrm itself, is not so plain, but is asserted by one who ought not to have made a mistake about such a matter5. That Stephen endeavoured to silence him and to

1 William of Malmesbury, Gesta Begum, ii. 553. The legate says, 'Bex itaque faciat quod etiam in forensibus iudiciis legitimum est fieri, ut revestiat episcopos de rebus suis ; alioquin iure gentium dissaisiti non placitabunt.' The king's appeal occurs on the next page. As to the proceedings at Borne between Stephen and Matilda, see Bound, Geoffrey de Mandeville, 250 ff.

3 William Fitz Stephen, Materials for Life of Becket, iii. 17.

* Thomas's activity in this matter is made probable by Gervase of Canterbury, ii. 384. This passage, together with the words of Robert of Torigny (ed. Hewlett), p. 159, and of John of Salisbury, Polycraticus, lib. viii. cap. 22, contains most what is known of the legal career of Vacarius. These passages are conveniently collected by Holland, Collectanea of Oxford Historical Society, ii. 139. In 18% the whole story of Vacarius was put on a new footing by Liebermann, E. H. K. xi. 305, 514. We adopt his results.

* Wenck, Magister Vacarins, p. 134.

5 Gervase of Canterbury, foe. cit. ; Liebermann, E. H. B. xi. 308; Bashdall, Universities, ii. 335 ff.

CH. v.] Roman and Canon Law. 119

extirpate the books of civil and canon law we are told upon good authority1. 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 Digest2. 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 affairs3. Besides this, we have from Vacarius a christological pamphlet on the assumption of the manhood, and a little tract on the law of marriage in which he appears as an acute critic of the mischievous doctrine which the canonists and divines were evolving4, [p. 99] Unless he had a namesake, he spent the rest of a long life in England, held some preferment in the northern province, was attached to Becket's rival, Archbishop Roger of York, and acted as Roger's compurgator when a charge of complicity in the murder of St Thomas was to be disproved6. We do not know that he took any part in the controversy between Henry and Becket; if he did, we must look for him rather among the king's than among the archbishop's legal advisers. Perhaps he lived until 1198 or 12006; if so, he must have been a very young man when Theobald fetched him from Italy7.

1 Job. Salisb. Polycr. lac. cit. This matter is discussed by Wenck, pp. 28-41. Liebermann, E. H. B. xi. 310.

2 Large portions of the work were published in 1820 by Wenok, Magister Vacarius (Leipzig). Savigny discusses it, Geschichte, cap. 22, §174; cap. 36, § 124. There is a MS. of it at Worcester, of which no full account has yet been given.

3 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 decano Eboracensi.'

4 Maitland, Magistri Yacarii Summa de Matrimonio, L. Q. B. 1897.

11 Liebermann, E. H. B. xi. 312-4. Add to the references there given: Jessopp, E. H. B. xi. 747; Historians of the Church of York, iii. 81.

8 Hoveden, iv. 75, and the note by Stubbs.

7 In general as to Vacarius see Wenck's book; Stubbs, Const. Hist. § 147 ; Stubbs, Lectures, 120, 137, 141, 301-3; Holland, E. H. B. vi. 243-4; Bashdall, Universities, ii. 335 ; Liebermann, E. H. B. xi. 305, 514.

120 Roman and Canon Laiv. [BK. i.

Legists and From Stephen's reign onwards, the proofs that Roman and in Eng- canon law are being studied in England become more frequent, land. rp^ ietters of Archbishop Theobald's secretary, John of Salisbury, the foremost scholar 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 drew high praise from Savigny1. 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 jurisprudence neglect its elements2. Maxims out of the Institutes or the Digest become part of the stock in trade of the polite letter writer, the moralist, and [p-ioo] 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 Johannes Faventinus*. Thomas of 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 England, maintained their pre-eminence. During the rest of the middle ages hardly a man acquires the highest fame as legist or deeretist who is not Italian, if not by birth, at least by education. The second place must be conceded to the French universities; in particular to the school of Orleans. There are some signs of original work in England. The scholars of Vacarius glossed his glosses. Some manuals of procedure

1 Geschichte, cap. 36, §131.

* Opera, ii. 348; iv. 3. 7.

8 Chronicles of Robert of Swaf ham, 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.

4 Chron. Evesham, p. 267.

8 Holland, Eng. Hist. Rev. vi. 247 ; Rashdall, Universities, ii. 338.

CH. v.J Roman and Canon Law. 121

have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century1. Of these the most interesting to us is one which has been attributed to no less a man than William Longchamp. A clerk of Norman race, he became for some years, as all know, King Kichard's viceroy and the true ruler of England. Even after his fall he was still the king's chancellor2. Another lawyer who for a while controls the destiny of our land is Cardinal Guala Bicchieri8, but it were needless to say that he was no Englishman. Probably that one of our countrymen who gains [p. 101] most fame in the cosmopolitan study is Ricardus Anglicus4. He has been somewhat hastily identified with Richard le Poore, who became dean of Salisbury, bishop of Chichester, of Salisbury, of Durham5. In the next century the most prominent name is that of William of Drogheda, who taught at Oxford and wrote a Summa 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 c&ebres, 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..7 Thomas of Marlborough, prior of Evesham, despite his having

1 Caillemer, op. cit. pp. 15-50.

2 Caillemer, op. cit. p. 50, prints the ' Practica Legum et Decretorum edita a Magistro W. de Longo Gampo.' Longcbamp's career is described at length by Stubbs in the Introduction to Hoveden, vol. iti. A manual known as the Ordo Indiciarius of the Bamberg MS. is attributed to England ; it was published by Sohnlte in the Proceedings of the Vienna Academy (1872), vol. 70, p. 235.

8 Chron. Evesham, p. 191: 'dominum Gualam ...inter cardinales in iure civili peritissimum.'

4 Schulte, Geschichte des canonischen Bechts, i. 183; Caillemer, op. cit. 33-4 ; Bethmann-Hollweg, Civil Prozess, vi. 105.

9 In our first edition we said that the identification of the bishop with the canonist might require reconsideration. See now Mr Blakiston's article Poor, Richard, in Diet. Nat. Biog., which shows that the evidence of identity is very slight. Schulte has collected a few particulars about English students and teachers at Bologna—i. 151, a certain David, canon of 8t Paul's, who was a master there in 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. For some entries in a Bolognese necrology relating to English masters, see Dublin Beview, cxii. 78.

8 Schnlte, ii, 113; Bethmann-Hollweg, Civil Prozess, vi. 123-131; Delisle, Litterature latine, p. 68; Maitland, E. H. E. vol. xii. 7 Epist. Cantuar. pp. 68, 471, 476, 506.

122 Roman and Canon Law. [BK. I.

taught law at Oxford, attended the lectures of Azo,' master of all the masters of law,' before he trusted himself to plead the cause of his abbey at the threshold of the Apostles1. 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 cardinal bishop of Ostia, and who, for all [p-102] men who read the law of the church, will be simply Hostiensis2. Edward I. had Franciscus Accursii at his side3. 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

civilian in . . °

England enthusiasm men might be content to study for its own sake

to do. this record 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 refonn, rather than with that' Nolumus leges Angliae mutare' which the barons were about to utter8. Matthew Paris has

1 Chron. Evesham, pp. 147, 153, 168. Marlborough went to Bologna by the advice of the pope (Innocent in.) and Cardinal Ugolino. He employed as his counsel Magister Merandus Hispanns, 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.

3 Mat. Par. Chron. Maj. iv. 83, 286, 351-3; Sehulte, ii. 123; Maitland, Canon Law in England; E. H. B. vol. xii.

» Stubbs, Const. Hist. §179; Savigny, Oeschichte, cap. 43, §102.

4 This by the bull Super speculum, of which divers portions are to be found in the Decretales Gregorii, in particular, c. 28, X. 5. 33; Denifle, Chartularium Universitata Parisiensis, i. 80.

5 Hot. Cl. 19 Hen. III. 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

CH. v.] Roman and Canon Law. 123

handed down to us what purports to be the text of a papal [p. 103] bull which goes much further1. 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 Germany—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 of 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 do2. 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 the Roman books. Oxford and Cambridge gave degrees as well in the civil as in the canon law8. The one considerable work produced 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

which it can be contrasted with ' decreta' or ' canones.' 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 long time to come. See Clark, Cambridge Legal Studies, p. 40.

1 Mat. Par. Chron. Maj. vi. 293-5.

2 Digard, La papauWJ et 1'etude du droit remain, Bibliotheqne de 1'Eeole 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 an university squib; however, Matthew Paris believed in it. Blackstone, Comm. i. 20, has strangely misunderstood the drift of this document.

3 Bashdall, Universities, ii. 454; Clark, Cambridge Legal Studies, 42-59.

124 Roman and Canon Law. [BK. i.

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 factio' and the like1, 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, even when they had come into existence, could not provide [p-104] 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 immediate purpose; for we have now to note in the first place that a large tract in the 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

ecclesiasti- was no easy task; it was not to be accomplished in England, in 041 taw- France, in Germany, without prolonged struggles2. The Conqueror, 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 quarrel between Henry and Becket. In the Constitutions 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 innovations*. But his own assertion all along had been that he was

1 See e.g. Memoranda de Parliament*) of 33 Edward I. ed. Maitland, pp. 331, 335.

- Brunner, D. B. 6. § 96; Fournier, Les officialites au moyen age; Luchaire, Mauuel des institutions franchises, p. 121; Hiuschius, Kirchenrecht, v. 373 ff.

3 Gesta Henrici (Benedictus), i. 33.

CH. v.] Roman and Canon Law. 125

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 Borne 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, are the [p. 105] aggressors 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 ecclesiastical or spiritual kind, or because the persons concerned in it, or some of them, are specially subject to the ecclesiastical jurisdiction1.

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 nomy' 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 internal administration of their revenues. In this region the one limit set to her claims is the principle asserted by the state that the rights of the patrons (advocati) of churches are temporal rights, that the advowson (advocatio ecclesiae) is temporal property2. To start with, the majority of churches had been owned by the landowners who built them3. The spiritual power had succeeded in enforcing the rule that the 'institution' of the clerk lies with the bishop; the choice of the clerk still lay with the landowner. Henry II. maintained, Becket controverted, Alexander condemned this principle; but, despite papal condemnation, it seems to have been steadily upheld by the king's court, which prohibited the courts Christian from interfering

1 An excellent statement will be found in Makower, History of the Church of England, 399 ; see further an interesting bull of Urban IV. in Chartae, Privilegia et Immunitates, Irish Bee. Com., p. 30.

2 Const. Clarend. c. 1.

3 ITlrich Stutz, Oeschichte des kirchlichen Beneficialwesens, Berlin, 1895.

126 Roman and Canon Laiv. [BK. I.

with the right of patronage1; and very soon we may find two prelates in litigation about an advowson before the royal justices2. In this instance the clergy seem to have given way somewhat easily"; both parties were at one in treating the advowson as a profitable, vendible right. Henry's victory at this point was of the utmost importance in after ages. It distinguishes England from other countries, and provides a base for anti-papal statutes4. As regards other matters falling under the present head there was little debate; but it behoves us to notice that our temporal lawyers were thus excluded from some fruitful fields of jurisprudence. The growth of our law of corporations is 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 sooner than we did, if the justices had been bound to deal with the administration of revenues given to prelates or convents as a provision for particular purposes, such as the relief of the [p.ioe] poor or the maintenance of fabrics*.

Church (b) The ecclesiastical tribunals would much like to claim

property. ^e Decision of a|j 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

1 Glanvill, iv. 12-14.

9 See e.g. Select Civil Pleas, i. pi. 245. Bracton's Note Book, pi. 551: in 1231 the bishop of London, in a suit (or an advowson, accepts a wager of battle.

* Maitland, E. H. B. ri. 647. ' Maitland, E. H. B. xL 649.

1 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.

CH. v.] Roman and Canon Law. 127

invaded soil that had been devoted to God in the strictest sense by being consecrated1.

(c) The courts Christian claimed the exaction of spiritual y^jjj1^" 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 framed2.

(d) More important is it for us to notice that the church Matrimo-,. . ,. .... malcauses.

claims marriage, divorce, and consequently legitimacy, as themes

of ecclesiastical jurisdiction. This claim was not disputed by Henry II. or 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 inheritance of (p. 107] land, a matter which lay outside the spiritual sphere, the king's courts would not accept this rule4. 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 England8. 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 certificate6.

1 Constitutions of Clarendon, c. 9. We shall deal with this matter hereafter when we speak of tenure by frank almoin.

8 Mat. Par. Chron. Maj. iv. 614; Bracton, f. 402 b, 403; Circumspecte Agatis (Statutes, i. 101), o. 3; Articnli 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. 4 Glanvill, vii. 15.

9 Stat. Merton, c. 9; Letters of Bobert Grosseteste, pp. 76, 95; Bracton's Note Book, i. pp. 104-116.

" It is for the ecclesiastical court to decide 'an issue of general bastardy,'

128 Roman and Canon Law. [BK.. I.

Testamen- (e) Yet more important to us at the present day was causes, another claim of the church, which has had the effect of 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 enlarge 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 her boundaries1, and at last succeeds in compassing the whole [p. 108] law of succession to movables ab intestate. The process whereby this was accomplished is very obscure; we shall speak of it upon another occasion; but here we may say that a notion prevailed that intestacy, if it be not exactly a sin1, 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' fells apart from ' the law of real property' and we at this day are suffering the consequences.

Pledge (/) With great difficulty were the courts Christian pre-

0 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,

while • an issue of special bastardy' is tried by a jury. < Is this man a bastard?' —that is an issne of general bastardy. 'Is this man a bastard because born before the marriage of his parents?'—that is an issne of special bastardy. Blackstone, Comm. iii. 835.

1 Glanvill, vii. 7; xiL 17; Harvard Law Review, iii. 168; this matter will be discussed at greater length when we speak of the history of wills.

9 Bracton, f. 60 b: ' nullam enim meretur poenam quis, qnamvis decedat intestatns.'

* See in vol. ii. our section on Intestacy.

CH. v.] Roman and Canon Law. 129

puts his hopes of salvation in the hand of another1. 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 prohibition. 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 [p. 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 take this hazard. A certain jurisdiction over marriage settlements of money or movable goods, the church had as part of its jurisdiction over marriage4.

(g) There remains the indefinitely wide claim to correct Correction the sinner for his soul's health, to set him some corporeal s "' 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 trespass5. But, even though this rule be maintained, much may be done for

1 Cart. Kiev. p. 164: ' et primum haeo onmia Sacramento firmavit, delude christianitatem in mann mea qua se obsidem dedit etc.'

» Glanvill, x. 1-3; Bracton's Note Book, pi. 60, 670, 683, 1361, 1464, 1671; Bracton, f. 406 b. We shall return to the laesiofidei hereafter in our section on Contract.

' Bracton, f. 401 b, 402.

4 The regular form of the prohibition relating to movables forbad the ecclesiastical judge to meddle with chattels ' quae non sunt de testamento vel matrimonio.'

5 Cirenmspecte Agatis (Statutes, i. 101), c. 6,11.

P. M. I. 9

130 Roman and Canon Law. [BK. i.

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 childurites, fines for fornication. So also the province of defamation 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 defamed1. 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 occasions, 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 had they called upon the state to burn or other- CP- no] wise punish the heretic, it is not likely that they would have called in vain*.

Jnrisdic- Ji. (a) But the church had opened a second parallel. She

turnover , . , f ,1 • • i • •» •

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 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 ecclesiastical court could inflict; it could inflict lifelong 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 Christian4. It should be well understood that 'the benefit of clergy' as allowed by English law was but a small part of that general

1 Of this in oar section on Trespasses.

* Glanvill, vii. 17.

9 See in vol. ii. onr section on Ecclesiastical Offences.

« Note Book, pi. 719, 808; compare Bracton, f. 401 b.

CH. v.] Roman and Canon Law. 131

immunity from lay justice which was claimed for the ordained by canonists in England as well as elsewhere1.

(6) On the continent of Europe the church often claimed Miserabiles

. ,, ., , ,, , ., ,, personae.

as her own the suits ot the miseratnies 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 widow'.

Large then is the province of ecclesiastical law; but it The sphere might have been much larger. Despite the many advantages k^0" that Henry II. gave to his antagonists by his rages and his furies, he handed down to his successors a larger field of purely [p. ill] temporal justice than was to be found elsewhere4. Even in Normandy Richard had to consign to the ecclesiastical forum all questions about broken oath or broken faith6. But we are here concerned with the fact that from the middle of the twelfth 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 opon'Eng-opposition to ' the canons and Roman laws'' that (if we may so Ush law-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 wnsuetudines are to prevail against the leges and canones, they must be accurately formulated and set in writing. The ' Nolumus leges

1 Maitland, E. H. B. xi. 646. Gratian at the end of c. 47, 0. 11, qu. 1, summed up the matter thus : ' Ex his omnibus datur intelligi, quod clericus ad publica indicia nee in civili, nee in criminal! causa est producendns, nisi forte civilem causam episcopus decidere noluerit, vel in criminal! sui honoris cingulo eum nndaverit.'

2 Schroder, D. B. G. 569 ; Founder, Officialites, 79.

* Glanvill, vi. 14. The widow who has received no part of her dower may go straight to the king's court.

4 Schroder, op. cit. 568; Fournier, op. cit. 64-94. 8 Mat. Par. Chron. Maj. ii. 368.

* Glanvill, vii. 15: ' secnndum canones et leges Bomanas.'


132 Roman and Canon Law. [BK. i.

Angliae mutare' of 1236 is no announcement of a purely abstract conservatism; our English rule is to be maintained in opposition 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 Bologna1. 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 justices3. Nothing could be less true than that he quarrelled with the whole mass of bishops and clergy. No doubt his u>.im 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 selfsame 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 ' archjusticiarsV 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 laymen4. The

1 Glanvill, Prologue; Bracton, f. 1.

1 See the famous passage in Dioeto, i. 434. * Dioeto, i. 435.

4 Thus on 16th July, 1195, the court consists of Hubert Walter, abp. of Canterbury, Godfrey Lucy, bp. of Winchester, Bichard FitzNeal, bp. of London (author of the Dialogus), Gilbert Glanville, bp. of Bochester (a distinguished scholar), Bichard Barre, archd. of Ely, Ralph Foliot, archd. of Hereford, William of Chimelli, archd. of Richmond, William of Ste Mere 1'figlise, afterwards bp. of London, Geoffrey FitzPeter, Simon Pateshull, Osbert FitzHervy, Bichard Heriet.

CH. v.] Roman and Canon Law. 133

majority of its members might at any time be called upon to hear ecclesiastical causes and learn the lessons in law that were addressed to them in papal rescripts. Blackstone'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 true1. It is by ' popish clergymen' that our English common law is converted from a rude mass of customs into an articulate system, and when the ' popish clergymen,' yielding at length to the pope's commands, no longer sit as the principal justices of the king's court, the creative age of our medieval 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 Becket*. These royal clerks have two sides; they are clerks, but they are royal. It would not surprise us to discover that Q>. 118] 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 like8; still, though we can suppose that this busy primate of England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest, even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino.

We attribute to these clerical justices in general no more English than a superficial acquaintance with the canon law, an acquaint-n^ter^ tJy ance with its main principles and with its methods. But this ^esia8"

1 Blackstone, Comm. i. 19. 1 Bob. Grosseteste, Epist pp. 76, 95.

* Giraldus Cambrensis, ii 344-6, iii. 27-8. Giraldns afterwards retracted his charges; see i. 426.


Roman and Canon Law.

[BK. i.

Nature of the canonical influence.

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. Viewed therefore from one point, the effect produced on English law by its contact with the romano-canonical learning seems immeasurable, or measurable only by the distance that divides Glanvill's treatise from the Leges Henrici.

Law, it may be said, is one thing and the expression of law another. But we can hardly, even in thought, divorce the matter of law from its form. Old traditional rules must lose their old meaning so soon as men attempt to weave them into a reasonable system. 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 rules from [p.iu] the other. Thus Glanvill tells us that the ' exceptions,' 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 Christian1. Here a whole chapter of law, which in the hands of the canonists is already becoming a bulky chapter, is borrowed. 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 that ' 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

1 Glanv. it 12.

2 Will, de Longo Campo (Caillemer, p. 25): ' Sunt enim exceptiones aliae perpetuae, aliae dilatoriae.' Bract, f. 399 b: • Exoeptionnm quaedam sunt dilatoriae, quaedam peremptoriae.' This from Inst. 4. 13. 8.

CH. v.] Roman and Canon Law. 135

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 ideas and 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 will 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.



The work THE reign of Henry II. is of supreme importance in the [p. ns] of Henry nist;Ory of our |aw> an(j its importance is due to the action of the central power, to reforms ordained by the king1. Still it was rather as an organizer and governor than as a legislator that Henry was active. He issued no code; we may even doubt whether he published 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 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 ordinances,

1 As to the constitutional side of Henry's reforms we have little to add to what has been said by Dr Stnbbs in the Introduction to the Gesta Henrici, vol. ii, the Select Charters, and the Constitutional History.

CH. vi.] The Age of Glanvill. 137

[p. lie] 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 almost unique manuscripts; but we have every reason to fear that others have been irretrievably lost.

The first great legal monument of the reign is, however, no Comstitu-ordinance. In 1164, when the dispute with Becket was waxing clarendon, hot, Henry held a 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 seals1. 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 in the first months of 1166, he was again holding an assembly Assize of at Clarendon and ' by the counsel of all his barons' he issued an assize which made great changes in the administration of the criminal law. Whether this was intended to be a permanent measure or was merely to serve as an instruction for the justices who were just being sent out to hold an eyre, we cannot say for certain, but it was sufficiently new and stringent to require the consent of the magnates. We have, however, some reason for believing that on this same occasion 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 which had grown up around them. In 1170 Henry instituted inquest of a grand inquiry into the conduct of the sheriffs whom he had

1 The document that we have professes only to give ' a certain part' of the customs that were ' recognized and recorded.'

138 The Age of Glanvill. [BK. i.

removed from their offices. The instruction for this 'Inquest of [p. 117] Sheriffs' we have : it is an early example of those articles of inquest by which, as time goes on, the whole machinery of justice Assize of is subjected to examination and amendment. At Northampton ton. amp in H76 a fresh set of instructions was given to the itinerant 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 disseisin1.' 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 us2. 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 chroniclers8.

Henry's in- If we try to sum up in a few words those results of Henry's The jury' reign which are to be the most durable and the most fruit-Srigimd ftd» we mav say tnat tne whole of English law is centralized writ- and unified by the institution of a permanent court of professional 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 jury4.

Essence of The essence of the jury—if for a while we use the term

the jury. ' juiy' m the widest sense that can be given to it—seems to be

this: a body of neighbours is summoned by some public officer

to give upon oath a true answer to some question. That

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, ed. 3, i. 568.

3 The most striking testimonies to Henry's governmental activity are collected by Stnbbs, Const. Hist. §147. Ralph Niger says: 'Nallo quaestn satiatus, abolitis legibus antiquis, singulis annis novas leges quas assisas vocavit edidit.'

4 In the main we accept the results attained by Brunner in his Entstehung der Schwurgerichte. These have already been adopted by Stubbs, Const. Hist. § 164. See also Brunner, D. B. G. ii. 522-7; Thayer, Development of Trial by Jury, Boston, 1896.

CH. vi.] The Age of Glanvill. 139

[p. 118] question may take many different 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 landowners 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 information, 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 essentially from a judgment, a doom adjudging the land to William. Even though the form of the verdict and its conclusive force be such that the judgment must follow as mere matter of course, still between the sworn verdict and the judgment there is a deep gulf1.

If what we were seeking for were a court in which at the Jurors, bidding of its president, of some national or royal officer, ^^^^ ealdonnan or reeve, the inhabitants of a district, or some wi*1"58868-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 Select Pleas in Manorial Courts (Selden Society), pp. Ixvi-lzviii; Vinogradoff, Villainage, 870-1. But that the jury should have originally grown out of a body of doomsmen seems almost impossible.


The Age of Glanvill.

[BK. i.

The jury a royal institution.

Origin of the jury. The

Frankish inquest.

deliver is no judgment; they come to 'recognize,' to declare, [p.H9] 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 summoned 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 must swear a promissory oath; he swears that he will speak the truth whatever the truth may be.

Then on the face of our English history we seem to see that the jury is intimately connected with royal power. 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, so often copied by foreigners, that its origin has been sought in many different directions. At the present day, however, there can be 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 procedure of our own ancient [P.I»]

CH. vi.] The Age of Glanvill. 141

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 truth1. 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 employs 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, and 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.

Such is now the prevailing opinion, and it has triumphed in The jnry in Q>. 121] this country over the natural disinclination of Englishmen to ^B""^-

1 Brnnner, Schwurgerichte, pp. 74-6. 1 Ibid. p. 87.

142 The Age of Glanvill. [BK. I.

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 offama publica. The This species of the inquest is that which is the most likely

thegns. to have penetrated beyond the limits of the empire, for within those limits it was adopted by the church for her 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 Priam 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, and compelling to the ordeal or to compurgation those against whom bad tales are told1. 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 ^Ethelred the Unready, published, so it would seem, in the year 997 and applicable only to the Danish district8. In it we read how a moot is to be held in every wapentake, and how the twelve eldest thegns 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 accusation; but the context will make us doubt whether we [p. 122]

1 Regino Prumiensis de Eccles. Discipl. lib. 2, cap. 2 (Migne, Patrol, czzxii. 282). Stubbs, Const. Hist. i. p. 662, remarks that the iuratoret tynodi 'do not present,' but' only reply to the inquiry of the visiting bishop.' Bat there is no contrast here, for the English jurors by their presentments only reply to inquiries addressed to them by the royal officer. Cp. Burohardi Wormaciensis Decreta, lib. i. cap. 91 (Patrol, cxl. 571).

* jEthelred, in. 3. As to the Danish character of this ordinance see Schmid, Gesetze, p. li; Brunner, Schwurgerichte, p. 403; K. Manrer, Krit. Ueberschau, v. 389; Steenstrup, Danelag, p. 209.

CH. vi.] The Age of Glanvill. 143

have here a law of any generality1. 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 field for research, but it seems unlikely that any new discovery will disturb the derivation of our English 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 unprepared for the introduction of this institution; but that the Norman duke brought it with him as one of his prerogatives can hardly be disputed3.

Hardly had England been conquered, before the sworn The inquest of neighbours appeared as part of the system of govern- the Nor-ment and royal justice. The great fiscal record known to us as man age' Domesday Book was compiled out of the verdicts of juries4. The king makes use of the same engine in his own litigation; he can bestow the right to make use of it upon favoured churches5; 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 [p. 123] church of Ely on the day of the Confessor's death are to declare

1 Brunner, Schwnrgericbte, 402-3.

* K. Manrer, Das Beweisverfahren nach dentschen Bechten, Krit. ITeber-Bcbau, v. 332, 374.

' von Amira, Paul's Grnndriss der German. Philologie n. 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.

4 D. B. iv. 497 (Liber Eliensis.)

• See e.g. Henry II.'s charter for Bochester, Monast. i. 177: 'Omnes minutas terras...confirmo in tantum et tarn pleniter sicnt proprii ministri mei exquirere deberent.' This should be compared with the Frankish and Norman privileges. Brunner, Schwurgericbte, 92-95, 238-45.

6 The principal cases are collected by Palgrave, Commonwealth, ii. p. clxxvi, and Bigelow, Placita Anglo-Normannica.

144 Tlw, Age of Glanvill. [BK. i.

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 neighbours1. Had the abbot of St Augustin's 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; the indices who are there mentioned 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'. Henry's Under Henry II. the exceptional becomes normal. ' The

use of the J f

inquest, king concedes to his subjects as a royal boon his own prerogative 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*.

The assize It is by no means unlikely that the class of disputes which was the first to be submitted to a jury as a matter of common practice 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

1 Hamilton, Inquisitio Com. Cantab, p. xviii

» On several occasions juratore* are mentioned on the Pipe Boll of 31 Henry I. See also Brunner, Schwurgerichte, pp. 465-6.

* Brunner, pp. 801-4. 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. 85) speaks as though a whole system of writs of novel disseisin and mort d'ancestor 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 cases (c. 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.

CH. vi.] The Age of Glanvill. 145

[p. 124] God and the saints should come before her courts. This principle was hardly disputed in Stephen's day; hut 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 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 justiciar1. 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 lawsuit 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 diocese2. .Be this as it may, already in 1164 Henry asserted that a procedure which in after days was known as the assisa utrum 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.

Some two years later, perhaps at the council held at The assize Clarendon in the first months of 1166, Henry took a far more disseisin, 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 Clarendon, 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

i Const. Clarend. c. 9.

1 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.

P. M. I. 10

146 The Age of Glanvill. [BK. i.

tidings of men being amerced for disseisin 'against the king's [p. 126] assize' ; from that moment onwards we get such tidings year by year1.

import of Of this ordinance, which was in the long run to prove itself

the novel . . ° . r

disseisin, one of the most important laws ever issued in England, we

have not the words. Bracton tells us that wakeful nights were spent over it2, and we may well believe him, for the principle that was to be enforced was new and startling. It was this:— If one person is 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 summoned; 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 spolii of the canon law; here we have but to notice the great principle of public law that the king has laid down. The ownership 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 which 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*.

1 Pipe Boll, 12 Hen. IL p. 65: ' pro dissaisina super assisam Regis'; 13 Hen. II. p. 134: 'pro dissaisina facta super assisam Regis'; 14 Hen. II. pauim. No doubt there are writs of earlier date which in many respects resemble the writ of novel disseisin; see Bigelow, Placita, pp. 128, 130, 169, 170 ; Hewlett, 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.

* Bracton, f. 164 b : ' de beneficio principis succurritur ei per recognitionem assisae novae disseisinae multis vigiliis excogitatam et inventam.'

9 Charter, 1217, c. 35 : ' Nullus liber homo...dissaisietnr de libero tenemeuto suo...nisi per legale indicium parium suorum vel [=et] per legem terrae.' Compare the formula of the assize ' Si B. ininste et sine iudicio dissaisivit A. de libero tenemento suo.'

CH. vi.] The Age of Glanvill. 147

At some time or another in his reign Henry went further The grand than this. He decreed that no man need answer for his free [p. 126] tenement without royal writ1. 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 assize*.' 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.

Then to all seeming the council held at Northampton in The assize 1176 instituted a second possessory assize, the assize of mort d'ancestor. 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

i Glanvill, xii. 2, 25; Brnnner, Schwurgerichte, 411.

a Glanvill, ii. 7.

* Bracton, f. 112: 'Et siout non debet sine brevi respondere, ita nee debet sine iudicio disseisin.' Ibid. t. 161: ' Nemo debet sine indieio disseisin de libero tenemento suo, nee respondere sine precepto domini Begis nee sine brevi.' Bot. Pat. 76: King John says to the people of Ireland, < Nolumns...qnod aliquis ...vospossit disseisire de liberis tenementis vestris ininste sat sine indicia, nee quod in placitam ponamini per alicuius 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 in hac assisa temere iurantium ordinata est et regali institution! eleganter inserta.'

4 Ass. Northampt. c. 4.


148 The Age of Glanvill. [BK. I.

the novel disseisin is that one man, even though he claims and [p. 127] 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 a 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 and a heavy blow is thus struck at feudal justice, 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.

The assize Scarcely less important than litigation about land is liti-preseut- gation about the advowsons of churches. Henry has here ment' 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 court1. 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 gave a possessory action, the assize of darrein presentment (assisa de ultima presentatione), which stands to the writ of right of advowson in somewhat the same relation as that in which the novel disseisin stands to the writ of right for land. If the church is vacant and two persons are 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 a few months the diocesan bishop will fill up the vacancy*. 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

1 Const. Clarend. c. 1.

3 Gesta Henrici, i. 233 ; Hoveden, ii. 184.

CH. vi.] The Age of Glanvill. 149

[p. 128] neighbours is summoned to declare who it was that presented the last parson1.

Thus the sworn inquest begins to make its way into our Assize and ordinary civil procedure. In a proprietary action for land or for]ury' 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 declare who has the better right. In four other cases a plaintiff may begin proceedings by obtaining a royal writ, which will direct that an inquest shall 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

[p. 129] of Henry II. as part of the usual machinery of civil justice.

1 Glanvill, xiii. 18, 19.

150 The Age of Glanvill. [BK. i.

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 18191, proof by oath-helpers until 18332; but from this moment onwards they are being pushed into the background.

Thesystem Closely connected with the introduction of trial by inquest

of original . '

writs. is the growth of that system of original writs which is soon

to become the ground-plan of all civil justice. For a long time past the king at the instance of complainants has 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 assizes 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 summon an inquest in order that one precise question may be answered :— Did B unjustly and without a judgment disseise A of his free [p. iso] tenement in X since the king's last journey into Normandy ? At countless points an action thus begun will differ from

1 Stat, 59 Geo. III. c. 46.

1 Stat. 3 & 4 Will. IV. c. 42, sec. 13.

CH. vi.] The Age of Glanvill. 151

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 manufacturer 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 offidna iustitiae has already a considerable store of ready-made wares and English law is already taking the form of a commentary upon writs.

The accusing jury also has become part of the ordinary The ' mechanism of justice. The first definite tidings that we get of J^yf"* it are somewhat puzzling. To all seeming Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere unsworn suggestion of ill fame. Either someone should stand forth and commit himself to a definite accusation, or else the ill fame should be sworn to by twelve lawful men of the neighbourhood summoned for that purpose by the sheriff: in other words, the ecclesiastical judge ought not to proceed ex officio upon private suggestions'.

1 Continuatio Beccensis, Hewlett's edition of Kobert of Torigny, p. 327: ' Bex Anglorum Henrietta ad Natale Domini [1159] fait spud Falesiam, et leges instituit ut nollns decanus aliqnam personam accuaaret sine testimonio vici-norum circammanentium, qui bonae vitae fama landabiles haberentur.' Const. Clarend. c. 6: ' Laioi non debent acousari nisi per certos et legates aocasatores et testes in praesentia episcopi...Et si qui tales fuerint qni culpantnr, quod non velit vel non audeat aliquis eos accusare, vicecomes requisitus ab episcopo faciet iurare dnodecim legalea homines de vicineto, sen de villa, ooram episcopo, quod inde veritatem secundum conscientiam snam manifestabunt.' With this should be compared Magna Carta, 1215, o. 38: 'Nullus ballivns ponat de cetera aliquem ad legem simplioi loquela sua, sine testibns fidelibus ad hoc inductis.'

152 The Age of Glanvill. [BK. I.

Henry seems to be forcing this rule upon reluctant prelates, [p-131] and at the same time to be asserting that it is an ancient rule. From this we may perhaps infer that the synodal jury; described to us by Begino 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 obscure1. 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 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 hand 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 which in later days the sheriff makes twice a year as he takes [p. 1S2] his ' turn' through the hundreds8. Every time that the justices are sent on their rounds the king can at pleasure add to the

1 In or about 1246 Robert Grosseteste made strict inquest as to the continence 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 testamentary causes. See Prynne, Records, ii. 704-6. Matthew Paris, Chron. Maj. iv. 579, speaks as though the bishop's proceedings were deemed both novel and harsh. The writs preserved by Prynne tell the same tale. 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 tbe 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 ut church, or to those sins of tbe flesh which admittedly lay within the province of ecclesiastical jurisdiction.

2 Select Pleas in Manorial Courts (Selden Soc.), pp. zxvii.-xxxviii.

CH. vi.] The Age of Glanvill. 153

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 connected 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 demesne 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 structure measures was to increase at a rapidly accelerating rate the king's amount of judicial business that was transacted in the king's conrt-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 structural changes'. 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 experiment8. He was keenly interested in [p. 183] 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 year 1178 we hear that the king

1 Stnbbs, Introduction to Gesta Henrici, vol. ii., has discussed this matter at length. See also Bound, Feudal England, 509. 3 Diceto, i. 434-6.

154 The Age of Glanvill. [BK. i.

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 complaints of the kingdom; questions that they can not decide are to be reserved for the king and his wise men1. 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 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 earls and powerful 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 king is still making experiments, trying now one man and now another*.

Thecentral However, we may say that before the end of the reign there is a permanent central tribunal of persons expert in the administration of justice—of sworn judges*. It can be distinguished from the courts held by the itinerant justices, for, [p.iS4] though every such court is curia Regis, this is capitalis curia

1 Geste Henrioi, ii. 207.

2 See Eyton, Itinerary of Henry II. A good many ' final concords' from the last years of the reign are gradually being brought to light. See Bound, The Earliest Fines, E. H. E. zii. 293.

9 Mapes, De Nngis, p. 241: 'Habemus et nos censores sub serenissimo indice, quorum iustitiam domini sui iuatitia remordet, quia iurati coram ipso quod aequitate servata censebunt ut praedicti tres Plutonis arguti judices.'

CH. vi.] The Age of Glanvill. 155

Regis1, 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 exchequer2, it has a seal of its own and may well sit away from Westminster, while the fiscal business could hardly be transacted elsewhere3. It can be distinguished from those great councils of prelates and nobles that the king holds from time to time? questions too high 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 bench6.' Though it is curia, Regis and capitcdis 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 frequent nor long. Westminster seems to be becoming the home of this tribunal; but as yet all its arrangements are easily altered.

The visitation of the counties by itinerant justices has Itinerant become systematic. From the early years of the reign we ]ns ces' hear of pleas held on circuit by Eichard 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 Eichard Lucy and Earl Geoffrey of Mandeville. In 1168 Eichard of Ilchester, Guy the dean of Waltham, William Basset and Eeginald Warenne visited most of the counties. In 1175 the north and east were perambulated by Eanulf Glanvill and Hugh of Cressi, the south and west by William of Lanvallei and Thomas Basset, while the king himself seems to have been journeying with other justices in his suite7, [p 135] In 1176 to execute the assize of Northampton eighteen justices

1 Glanvill, vill. 5. A fine levied before the itinerant justices always purports to be ' finalis concordia facta in curia domini Begis.' Such at least is the case in later times ; but see Bound, E. H. R. xii. 297.

1 Dialogus, lib. i., c. 4-6. 3 Ibid. lib. i., o. 15.

4 Gesta Henrici, ii. 207-8. ' Madox, Exchequer, i. 798-801.

8 This is the usual form throughout Glanvill's book.

7 Bound, Feudal England, 513.


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[BK. i.

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 doings1; still it was usual that each party of justices should include some few members of the permanent tribunal. Also the counties 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 afflicted the people.

Cases in No judicial rolls of the reign have come down to us, but

court. 8 8 during the last years of it such records were being compiled*. 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 usual 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 Leicester4.

Another life-like, if not impartial, story tells of a great

Scenes in court.

i Glanvill, viii. 5.

s Select Pleas of the Crown (Selden Soc.), pp. xxvi-zzvuL The rolls of the itinerant justices spoken of in the Dialogus, lib. ii. c. 1, may have been mere lists of amercements.

> William FitzStephen (Materials for Life of Becket, iii.), p. 67.

CH. vi.] The Age of Glanvill. 157

[p. 186] 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 compromise; in neither case therefore was a judgment pronounced. In the one1, 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 Richard Lucy) and several other barons, while the hall was filled by no small multitude of the people8. 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 chamberlain 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 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, Richard de Hommet the constable of Normandy, and that expert clerk, Richard of Ilchester. Along with these he carefully perused the St Albans charters, and showed, so the monks said, a wisdom comparable to that of Solomon4, 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,

1 Palgrave, Commonwealth, vol. ii. p. xxviii. * Ibid. p. zlvii.: ' populique insuper multitudine non modica.' 9 Gesta Abbatum, i. 150.

4 Ibid. 151: ' Quod in tarn iuvene rege non minori sapientiae depntatum eat qnod dizit, quam indicium Salomonis inter meretrices altercantes.'

158 The Age of Glanvill. [BK. I.

Geoffrey Ridel, disturbed this private session, and suggested [p.i»7] defects in the abbot's title; the king turned him out of the room. The public session was resumed; the king delivered an opinion unfavourable to the bishop—' privileges prevail against prescription1'—but 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 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 Toulouse for a writ directing the justiciar to rehear a case, in which, in consequence 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 of no ordinary kind, for he had scorned to appear in a court held by a mere justiciar*. But even for ordinary writs men had to go abroad.

TheAnesty The curious story told by Richard of Anesty has often case' been retold4. He was claiming as heir to his uncle certain lands of which Mabel of Francheville, whom he asserted to be illegitimate, was in possession8. 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 transmitted 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

1 Gesta Abbatum, i. 154: 'Privilegia, at credimas, praeindicant prae-scriptioni."

- Palgrave, Commonwealth, vol. ii. p. Ixvii.; Bigelow, Placita, 175.

3 Gesta Abbatum, i. 159-166.

4 Palgrave, Commonwealth, vol. ii. pp. v.-xxvii.; Bigelow, Placita, 311; Hall, Court Life under the Plantagenets; Maitland, L. Q. R. xiii. 141.

* See Letters of John of Salisbury (ed. Giles), i. 124.

CH. vi.] The Age of Glanvill. 159

the army for the expedition to Toulouse; Richard had to go as [p. 138] far as 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 lands1. 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 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 mouth". 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 solve4. 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.

1 Palgrave, p. Ixxxiii.: ' et tandem gratia domini Regis et per indicium curiae enae adiudicata est mihi terra avnnculi mei.'

1 Bigelow, Placita, 170.

a Palgrave, p. Ixxiii.; Bigelow, Placita, 222. Mapes, De Nngis, p. 227: 'In legibus constituents et omni regimine corrigendo discretns, innsitati occultique iudicii subtilis inventor.'

4 Bigelow, Placita, 239.


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Law and


Walter Map has told us how in the exchequer a poor man obtained an expeditious judgment against a rich antagonist. Of this as of a marvellous thing he spoke to Ranulf Glanvill, [p.139] 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 smiled1. 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 II. the praise is due8. In the middle of the next century Henry III. had quarrelled with Bracton's master and patron, Bishop William Raleigh, and a proposal was made that the dispute should be referred to the legal faculty at Paris. Raleigh rejected this plan, saying that there were good enough lawyers in England, and that time was when the greatest princes of the earth submitted their causes to English lawyers4. This boast was not baseless: Henry IL had made it true.

After many experiments he committed the ordinary work of 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 bad 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 Ridel, 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

1 Mapes, De Nugis, p. 241. - Ibid. p. 212.

* 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 directly denied the charge. The judgment is that each must restore what he has taken.

4 Frynne, Records, ii. 588, from Hot. Pat. 28 Hen. III.


CH. vi.] The Age of Glanvill 161

policy was at work in every corner 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 chronicler1 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.

(j>. 140] The Dialogus de Scaccario is an anonymous book, but Richard 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 generations, 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 11984. 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 treasurer7.

The book stands out as an unique book in the history of Dialogue medieval England, perhaps in tbe history of medieval Europe, chequer. A high officer of state, the trusted counsellor of a powerful king, undertakes to explain to all whom it may concern the machinery of government. He will not deal in generalities, he will condescend to minute details. Perhaps the book was not meant for the general public so much as for the numerous clerks who were learning their business in the exchequer8, but

1 Hoveden, ed. Stnbbs, i. p. xxi.

8 Eyton, Itinerary, 265.

* The book has been fully discussed by Liebennann, Einleittmg in den Dialogus de Scaccario. It is printed by Madox in his History of the Exchequer and by Stubbs in his Select Charters.

« Liebennann, pp. 33, 42, 64. « Ibid. p. 81.

« Ibid. p. 65. 7 Ibid. p. 10.

8 Ibid. p. 96.

P. M. I. 11


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Bannlf Glanvill.

His life.

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 wont 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 Henry II. Henry was so strong that he had nothing to [p.i4i] 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 resisted1. And so his treasurer expounded the course of proceedings in the exchequer, the constitution of this financial board, its writs 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 chessboard and the counters, the tallies, the scales and the melting-pot. But for him, we should have known little of the administrative 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. 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 Glanvill2 came of a family which ever since the 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 'friends, helpers and pleaders' who had aided Richard of Anesty in his fatuous law-suit*. The shrievalty of Yorkshire was an office

1 Dial. ii. c. 16: ' Huius autem rei causam, licet distorts modicum et regiae mmis utilitati serviens videtur, evidentem et satis instam secundam patrias leges comprobabis.' Ibid. ii. c. 10: 'Propter solam regis assisam sic esse cognoscas; nee enim est qai regiae constitution!, quae pro bono pacis fit, obviare presumat.'

» Diet. Nat. Biography.

3 Palgrave, Commonwealth, ii. p. xxiii.

CH. vi.] The Age of Glanvill. 163

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 [p. 142] 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.

Whether he wrote the book that has long borne his name is Traetatta a doubtful question. Some words of the chronicler Roger bus. Hoveden, his contemporary, may mean that he did write it; but they are obscure words1. 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

1 Hovedeu (ii. 215) under the year 1180 says that Henry appointed as justiciar Rannlf Glanvill 'caius sapientia conditae aunt leges subsoriptae quas Anglicanas vocaraus.' On this there follow (1) one set of the Leges Willelmi (Hie intimatur), (2) the Leges Edwardi, (3) a genealogy of the Norman dukes, (4) an Bxpositio Vocabuloram or glossary of A.-S. legal words, (5) the treatise in question, (6) certain assizes of Henry II. We may regard it as certain that Glanvill did not compose 1 or 2; also that the man who composed 5 did not compose 2. The question remains whether Hoveien's 'condidit leges' covers all this legal stuff or is specially attributable to 5, 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 which Hoveden is going to transcribe; the phrase is hardly better than an excuse for the introduction of a mass of legal matter. In the latter case we still have to ask what Hoveden meant by 'condidit 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 a 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. It is fairly certain that Hoveden found 1, 2 and 3 already hitched together so as to form a whole, which Dr Liebermann calls Tripartita, and not improbable that the treatise known to us as Glanvill ha-1 already been tacked on to this Tripartita. See Liebermann in Zeitschrift fur romanisohe Fhilologie, xiz. 81.


164 The Age of Glanvill. [BK. i.

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 GlaunvileV 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, 1187s. Certainly we can not say that Glanvill was incapable of writing [p. us] 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 books4. 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 Ranulf Glanvill was, like his master, a many-sided man, but his life was very busy, and 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 important,

i Maitland, Glanvill Revised, Harvard Law Eeview, vi. 1.

a The king of the prologue is obviously Henry. In lib. viii. c. 3, reference is made to a record of 31 October, 1187.

i Mapes, De Nugis, p. 8.

4 According to Eyton, Itinerary, 294-7, Glanvill was in France from March until June 1189; he then came to England to levy troops and was in France again in July.

6 This suggestion is due to a passage in Bracton (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 ' Hubertus Walteri' was not merely an uncommon name, it was a name of an exceedingly uncommon kind. 'Hubertns films Walteri' would of course be a name of the commonest kind, but the omission of the 'films' is, among men of gentle birth, an almost distinctive

CH. vi.] The Age of Glanvill. 165

for, though we would gladly know the name of the man who wrote our first classical text-book, it is plain that be was one who was very familiar with the justice done in the king's court during the last years of Henry IL We may go further, we may safely say that it was not written without Glanvill's permission or without Henry's.

[p. 144] The writer knew something of Roman and of canon law. Boman and Perhaps he had read the Institutes; probably his idea of what in the a law-book should be had been derived from some one of the ractatue-many small manuals of romano-canonical procedure that were . becoming current1. He does not however adopt the arrangement 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 sheriff's 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 a betrayal of his person or realm or army,—the concealment 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 jurisprudence*. The dilemma ' criminal or civil' is offered to every plea. This is new and has been foreign to English law. In the disorderly list of the pleas of the crown a great simplification has been effected: homicide, for example, is now always a plea of the crown, and we can finish the list with a ' si quae sunt similia' which leaves scope for rationalism. And yet the materials that are used are ancient; the terms which describe the crimen laesae maiestatis

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, FOBS, Judges of England, i. 181; Liebermann, Einleitung, p. 73.

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 such phrases as 'quod principi placuit,' 'melior est conditio possidentis,' or from occasional allusions to the ' leges et canones.'

2 Leg. Hen. c. 10.

166 The Age of Glanvill. [BK. i.

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 practice of the king's court. What he has borrowed from the new jurisprudence 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 becoming well-marked outlines in the procedure of the royal court,—and secondly a logical method which we may call dilernmatic. We have to consider— for naturally procedure is placed in the forefront—how an action is carried on. The defendant is summoned. Either he [p. 145] 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 which on King Richard's death will be raised between John and Arthur1. Again, there is a great deal of customary law administered in the local courts of which he professes his ignorance2. Old rules about wer and wite and bot 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 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'—he is 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*. Someone was at pains to translate it from Latin into French4.

1 Glanvill, vii. 3. 2 Glanvill, Prologns; xii. 6; xiv. 8.

* Maitland, Glanvill Bevised, Harvard Law Review, vi. 1. A second MS. of this revised Glanvill is preserved at Cains College.

4 Brit. Mus. MS. Lansd. 467: the translator will give the text 'en on commun romannz sans ryme'; Camb. Univ. LI. i. 16, f. 100. The version in Camb. Univ. Ee. i. 1 is partly in Latin, partly in French.

CH. vi.] The Age of Glanvill. 167

A version of it known as Regiam Maiestatem became current in Scotland1.

We may fairly say that under Henry II. England takes for English [p. 146] a short while the lead among the states of Europe in the continental production of law and of a national legal literature. No other ra ore' 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 Carolingians 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 north of the Alps it was only beginning to influence the practice of the temporal tribunals. We can not call Glanvill's treatise the earliest textbook of feudal jurisprudence, for parts at least 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

1 The Regiam Maiestatem is collated with Glanvill in vol. i. of the Acts of the Parliament of Scotland. Neilson, Trial by Combat, p. 104: ' Either the Regiam 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.' Glanvill'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 Englische Bechtsgeschichte. A new edition is wanted.

2 What is accounted the most ancient ordinance of a French king comes from Louis VII. in 1155: it establishes a ' peace' for ten years: Yiollet, Histoire du droit civil franpais, p. 152; Esmein, Histoire du droit francais, ed. 2, 488. From Germany also we have as yet merely Landfriedensgesetze which strive to set limits to private war: Schroder, D. B. G. p. 628.

3 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. See Lehmann, Das Ian go. bardische Lehnrecht, 1896 ; Schroder, op. cit. 668. The Assises for the Cour des Bourgeois were compiled, it is said, between 1173 and 1180, a few years before Glanvill's treatise: Viollet, p. 170; Brunner in HoltzendorfPs Encyklopadie, p. 310. The Assises for the Haute Cour are of later date.

168 The Age of Glanvill. [BK. I.

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 exchequer 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 Anjou1.

The limit It is a well-known doctrine not vet obsolete among us that [p-147]

of legal

memory, our legal memory is limited by the date of Richard I.'s coronation. 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 demandant'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 purposes, they could hardly have hit upon a better date than the 3rd of September, 1189. The restless Henry had gone to his rest; his 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

1 The most notable French law books are (1) the first part (Brnnner's Tres ancienne continue) of (Tardif's) Tres ancien contumier de Normandie, compiled circ. 1200; (2) the second part of the same work, circ. 1220; (3) the Grand coutumier de Normandie, circ. 1254-8 (see Tardifs edition); (4) a custnmal of 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 Conseil de Pierre de Fontaines, circ. 1254-9, from the Vermandois, highly romanized; (8) tbeLivre de Jostice et Plet from the Orleanais, circ. 1259; (9) Beanmanoir's Custom of Clermont in the Beauvoisis, finished in 1283. See Esmein, op. cit. 728-34; Viollet, op. cit. 177-88. In Germany the first law-book is the Sachsenspiegel, 1215-35; Schroder, op. cit. 635 ff. This was soon followed by the Deutschenspiegel and the so-called Schwabenspiegel. It is by no means impossible that the development 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: Tusage des rouleaux d'arrSts, d'origine anglo-normande.' To the same effect, Esmein, op. cit. 742.

1 Stat. West. I. (1275) c. 39; Statutes of Quo Waranto (1289-90).

CH. vi.] The Age of Glanvill. 169

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) 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 constitu-[p.148] tion has no longer to complain of a dearth of authentic materials; soon he is overwhelmed by them1.

Richard's reign, despite the exciting political struggles Richard's which filled its first years, was on the whole a time of steady if iSs" 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 The central 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 resigned the justiciarship he became chancellor. During the autumn term of 1196, to take one example, we may see him presiding in court on October 13, 15, 17, 18, 19, 21, 22, 24, 28 29, 30, November 4, 6, 12, 13, 14,18, 20, 21, 22, 23, 27, 28, 29, and December 1, 2, 3, 4 and 6, until we wonder when he found time for the duties of his archiepiscopate*. As justiciar he was succeeded by a lay baron, Geoffrey Fitz Peter, who held' the office until his death in 1213 ; he is one of the 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 Pateshull4; he may well have been the father of the yet more celebrated Martin Pateshull whom Bracton revered5. Already

1 The earliest of the known plea rolls has lately been published by the Pipe Boll 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 Becord Commissioners.

» Feet of Fines, 7*8 Bic. I (Pipe Boll Soc.) p. 3 ff.

9 Mat. Par. ii. 558: ' Erat autem firmissima regni columna, ntpote vir generosus, legum peritus, thesauris, redditibus, et omnibus bonis instauratus, omnibus Angliae magnatibus sanguine vel amicitia confoederatus.'

4 Mat. Par. iii. p. 296: 'qui quandoqne habenas sane moderabatur totins regni iustitiarii.' Ibid. 542: 'cuius sapientia aliquando tota Anglia regebatur.'

8 See Baker's History of Northamptonshire, i. 267; also Diet. Nat. Biog. He certainly was the father of Hugh Pateshull, who was for a while treasurer to Henry III. and became bishop of Licbfield. Simon had a clerk called Martin; Select Pleas of the Crown (Seld. Soc.), pi. 18.

170 The Age of Glanvill. [BK. I.

in 1202 the king's justices are officially styled 'justices learned in the law1.' But the court was still full of bishops, archdeacons and other clerks; for example, three successive bishops of London, Richard Fitz Neal, William of S. Mere 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, and during his reign he was often travelling [p. 149] 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 Westminster2. 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, 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.

Itinerant The counties also were visited from time to time by itine-justices. ranfc just}ces 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*. Legisla- There was little that we could call legislation ; an ordinance of turn. 1195 enforced the ancient rules for the pursuit of malefactors4; in 1197 an assize of measures was issued5, in 1205 an assize of money8. 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 power8. 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

1 Select Pleas of the Crown, pi. 34. * Ibid. pp. xii.—xvii.

8 Stnbbs, Select Charters; Rolls of the King's Court (Pipe Boll Soc.), vol. i.

4 Select Charters, E die turn Reyium; Hoveden, iii. 299.

5 Hoveden, iv. 33. « Hot. Pat. Joh. p. 54. 7 Gesta Henrici (Benedict), ii. 110. 8 Eot. Pat. Joh. p. 47.

CH. vi.] The Age of Glanvill. 171

had as of course, had grown within the intervening forty years1. 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.

[p. iso] It is not for us here to relate the events which led to the The Great exaction and grant of the Great Charter, to repeat its clauses, arter' or even to comment on all the general characteristics of that many-sided instrument. In form a donation, a grant of franchises 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 document4. 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 assembly5. 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

1 This Irish Begister of Writs is described in Harvard Law Eeview, iii. 110. The MS. is Cotton, Julius, D. 11.

J Bot. Clans. Job. 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 eursu.'

9 Charter 1215, c. 1: ' Concessimus etiam omnibus liberis hominibug regni nostri, pro nobis et heredibus nostris in perpetunm, omnes libertates sub-scriptas, habendas et tenendas eis et heredibus suis de nobis et heredibus nostris.' By c. 61 power is given the twenty-five barons to distrain the king 'per captionem castrorum, terrarum, possessionum et aliis modis qnibus poternnt...salva persona nostra et reginae nostrae et liberorum nostrorum.'

4 For an interesting discussion of a document professing to be a copy of an earlier charter of liberties, see E. H. B. vii. 288 (Bound); ix. 117 (Prothero), 326 (Hall).

5 Charter, 1215, c. 12, 14.

172 The Age of Glanvill. [BK. I.

lawful judgment of his peers or the law of the land1.' 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 courts of law, which can hardly enforce against the king his [p. isi] covenant that he will not sell or delay or deny justice, and that he will appoint as judges only those who know the law5. Eestora- On the whole, the charter contains little that is absolutely

racterof new. It is restorative. John in these last years has been thecharter. |jreajjing tne }aw j therefore the law must be denned and set in 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 reign4. In the main the reforms of Henry II.'s day are accepted 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 them5. 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 can not be fulfilled6. The claims of the feudal lord to hold a court which shall enjoy an exclusive competence in proprietary actions 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

i Charter, 1215, c. 39. s Ibid. o. 2, 32, 33. » Ibid. 215 c. 40, 45.

4 For instance c. 54: ' Knllus capiatur nee imprisonetur propter appellum feminae de morte altering quam viri sui'; Select Pleas of the Crown, pi. 32 (1202): 'nullum est appellum eo quod femina non habet appellum versus aliquem nisi de morte viri sui vel de rapo.' The rule was already law in Henry'II-'s day; Glanvill, xiv, c. 1, 3, 6.

• Charter, c. 18.

« Ibid. c. 1: 'ecclesia Anglicana libera sit et habeat iura sua Integra et libertates suas illaesas.'

CH. vi.J The Age of Glanvill. 173

principle which they can not openly attack1. 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 their meaning:—a man is entitled to the judgment of his peers; the king's justices are no peers for earls or [p. 152] barons. Foreign 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 excluding or oppressing the foreigner8. And yet, with all its faults, this document becomes and rightly becomes a sacred text, the nearest approach to an irrepealable ' fundamental 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 law8.

1 Charter, o. 34 : ' Breve quod vocatur Praecipe de cetero non fiat alicui de aliquo tenemento tmde liber homo amittere possit ouriam 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

I forth, would never have perplexed us. '* Ibid. o. 41,13.

* In after days it was possible for men to worship the words ' nisi per legale

if indicium 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 (for which term see Dig. 50, 16, 124). Often it is like the and (or) of our mercantile documents. The wording of the clause leaves 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 indicium parium does not point to trial by jury. For a legal instrument 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. For the history of the phrase iudidum parium, see Stubbs, Const. Hist. i. 578.



K«gnof THE reign of Henry III. (1216-72) is in the history of [p.iss]

our law an age of rapid, but steady and permanent growth. At the end of that period most of the main outlines of our medieval 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 political 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 legal system under his control; it was enforced by legal processes, by judgments that the courts delivered, by writs that the courts upheld. And on the other side there was 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 his courts and his chancery. If only the nation at large, the universitas regni, could obtain some share in the control over this 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.

General Our English lawyers have no philosophy of law, nor have

idea o law. ^Qy pursuecj very far the question, How does law, or a law, come

into being ? The opening chapters of Justinian's Institutes were

CH. vii.] The Age of Bracton. 175

[P. 164] 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 regni1, lex regni", lex terrae', ius et consuetudo regni*, lex et consuetude, leges et consuetudines, lei de la terre, lei et dreit de la terre*. Of course ius, lex and consuetudo are not in all contexts exactly equivalent words; ius and the French dreit often stand for ' a right6'; lex and lei are technically used to signify the various modes of proof, such as the oath, the ordeal, the judicial combat7. Glanvill and Bracton make some apology for giving the name leges to the unwritten laws of England8; 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 princeps10, in

1 Glanvill, vii. 1: ' secundum ius regni.'

2 Charter, 1215, c. 45: 'qui sciant legem regni.'

s Ibid. 1215, c. 39: 'per legale indicium parium suorum vel per legem terrae.' Bracton, f. 128 b: 'utlagatus rite et secundum legem terrae.' Ibid, f. 127b: 'ante aetatem dnodecim annorum non erit quis sub lege, et prius extra legem poni non poterit.' Ibid. f. 147: ' secundum legem Bomanorum, Francorum et Anglorum.'

4 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 denes.'

6 Thus in the count on a writ of right, ' Peto terram nt ius et hereditatem meam...pater meus fuit seisitus nt de de eo descendit quod hoc eat ius meum offero probare.'

7 Dialogus, ii. 7: 'leges candentis ferri vel aquae.' Glanvill, xiv. 2: 'per legem apparentem se purgare.' Charter, 1215, c. 38: ' Nullus ballivus ponat... aliquem ad legem simplici loquela sua.'

8 Glanvill, Prologue: 'Leges namque Anglicanas, licet non scriptas, leges appellari non videtur absurdnm.' Bracton, f. 1.

9 Bracton, f. 1: ' Habent enim Anglici plurima ex consuetudine qnae non habent ex lege.'

10 Dialogus, ii. 21: ' Decrevit enim rex illustris.' Hoveden, iii. 299: ' Edictum reginm.' Dialogus, ii. 1: ' ex novella constitutione, hoc est post tempera regis Henrici primi.' Glanvill, ii. 7: 'Est autem magna assisa regale quoddam beneficium, dementia principis de consilio procerum populis indultum...legalis

176 The Age of Bracton. [BK. I.

provisions' made by the king with the common counsel of his [p. 155] prelates and nobles, in an assize, or when we speak in English in an ' isetnysse1'—the word ' statute' is hardly yet in common use2—we may even have to say of some unprincipled rule that it is to be explained only by reference to the will of the legislator*. But as yet there is no definite 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, who is known to us as 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 law4. 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 law5. Common The term common law (ins commune, lex communis, commun

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 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 church6. In 1218 papal delegates report that the

ista institutio [ail. 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 isetnessea t>eet been imakede.'

2 The laws of Merton and Marlborough, though they are retrospectively called statutes, called themselves provisions. However, Henry I. had spoken of his statuta. See above, p. 96.

3 Dialogus, ii. 10: ' Propter solam regis assisam sic esse cognoscas; nee enim est cjui regiae constitution!, quae pro bono pacis fit, obviare praesumat.'

4 Bracton, f. Ib: the contrast is between mntari and in melius convertl.

a 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,

6 c. 32, X. 2. 20: 'tarn de communi iure, quam de consuetudine general! Anglicanae ecclesiae.'

CH. vii.] The Age of Bracton. 177

[p. 156] bishop of Salisbury asserts a right to the church of Malmesbury both under the common law and by virtue of a papal privilege1. But in truth the phrase was usual among the canonists, and they had warrant 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 justice3. In connexion with English temporal affairs we may indeed find the term ius commune in the Dialogue on the Exchequer: the forest laws which are the outcome of the king's mere will and pleasure are contrasted with the common law of the realm4, 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 prerogative ; it can also be contrasted with local custom: in short it may be contrasted with whatever is particular, extraordinary, special, with ' specialty' (aliquid speciale, espetiaM)*. When Bracton speaks of common law or common right—and this he does but very rarely—it is to distinguish from rights which have

1 Sarnm Charters, p. 89.

* Thus in Cod. Theod. 16, 5, 23 is a constitution repealing an earlier law which had placed a certain class of heretics under disabilities. ' Vivant Jure communi,' it says, and this we can best render by, ' They are to live under the common law,' i.e. the ordinary law. So in Cod. Theod. 2,1, 10: ludaei romano et commnni iure viventes.'

» Sarura Charters, p. 320: ' NOB vero...ius commune pro ecclesia de Preschut faciens considerantes.'

* Dialogus, i. 11: 'Legibus quidem propriis subsistit; quas non communi regni iure, sed volnntaria principum institutione subuixas dicnnt.' Ib. ii. 22: ' communis lex.'

5 Thus Y. B. 21-2 Edw. I. contrasts common law with statute (pp. 55-6, 419), with local custom (pp. 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 Bex placitare potest per breve magis conveniens legi commnni quam hoc breve.' Eot. Parl. i. 47 (1290): ' Perquirat sibi per legem communem.' 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 espessyaltt.'

P. M. I. 12


TJie Age of Bracton.

[BK. i.

Statute law.

The charters.

their origin in some specially worded contract or donation, those rights which are given to all men by the law of the land1, [p.157] 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 very useful, 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*.'

The mass of enacted law is as yet by no means heavy. As 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 curiosities3. We have in manuscript 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 1215. Important changes were made when it was reissued in

1 Bracton, f. 17b: 'Modus enim legem dat donation! et modus tenendus est contra ius commune et contra legem, quia modus et conventio vincunt legem... Bene potent dona tor... legem imponere donation!...contra legem terrae.' Ibid. 19 b: ' Item potent conditio impedire descensum ad proprios heredes contra ius commune.' Ibid. 48 b: ' Item potent donator ex special! conventione contra ius commune conditionem suam meliorem facere in causa donationis.'

2 Early instances of the use of the term in a more or less technical sense are these. Foedera, i. 266, a writ of 1246: 'Bex vult quod omnia brevia de communi Jure quae currant in Anglia similiter currant in Hibernia.' Provisions of Oxford (1259): 'de sectis autem quae...snbtractae fuerunt currat lex communis (curge la commune lei)':—'habeat rationabilem snmmonitionem Becundum 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 ins commune'; this seems to mean, 'Nothing but common justice.' See further as to the history of this phrase, Clark, Practical Jurisprudence, p. 70.

3 The Leges Edward! and one set of the Leges Willelmi (Hie intimatvr) 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. See Liebermann, Leges Anglorum, p. 28 ff. Bracton, f. 134 b, quotes historical matter from the Leges Edwardi; and in his work (f. 147) there is an addicio which seems to refer to some laws of 2£thelstan.

CH. VIL] The Age of Bracton. 179

1216; other important changes were made in 1217, and a [P. iss] few minor changes in 1225. The charter granted by Henry in 1225, when he had lately attained his majority, became the Magna Carta of future times1. He had to confirm it repeatedly. These repeated 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, irre-pealable 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 sacred text*. 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.

The first set of laws which in later days usually bears the Provisions name of ' statute' is the Provisions of Merton issued by the West-king with the consent of the prelates and nobles in 1236 on the a^aMarl-occasion of his queen's coronation: a few brief clauses amend borough, the law about divers miscellaneous matters3. From the time of storm and stress we have the Provisions of Westminster to which the king gave a reluctant consent in 12594. He did not hold himself bound by them; they never became a well established 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 Marlborough5. These four documents, the two

1 After 1225 bat 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 Bemont, Chartes des libertes anglaises, pp. xxri. 47-8. The text of the various editions can be best compared in this excellent book.

2 Statutes of the Realm, i. 6.

' Statutes, i. 1; Note Book, i. 104.

4 Statutes, i. 8.

1 Stat. Marlb. (Statutes, i. 19): ' convocatis discrecioribus eiusdem regni


180 The Age of Bracton. [BK. I.

Charters, the Provisions of Merton and of Marlborough, are the [p. 159] 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 insurgents1), 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 bissextile8. 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 kept8. 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 Westminster 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*.

tarn ex maioribus quam minoribns, provisum est et statntum ac concorditer ordinatum.' There seems no reason why we should any longer speak of Marlbridge when we mean Marlborough; ' Marlbridge' is but a stupid misrepresentation of the French form Marleberge.

1 Statutes of the Realm, i. 12.

2 Ibid. p. 7.; Note Book, i. 43.

3 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.

4 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, printed in Statutes of the Realm, i. 118; the ordinance of 1234 relating to special bastardy, which (see Bracton's Note Book, i. p. 104) is on the Coram Rege Roll; an ordinance of 1233 relating to the conservation of the peace, preserved on the Close Boll and printed in the Select Charters; a statute of limitation from 1237 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; an ordinance of 1253 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, and elsewhere; lastly an

CH. VIL] The Age of Bracton. 181

[p. 160] And if merely formal tests fail us, so also will more material Ordinance tests. Of course we can not in dealing with Henry's day insist tute. 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 counsellors1. 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, 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. Perhaps he desired to imitate an edict issued by his father-in-law Count Raymond of Provence in 1243s. 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 ameliorations, between laws and rules of procedure, no accurate lines could be drawn.

That the king is below the law is a doctrine which even a The king

° below the


important ordinance of 1255 against alienation, recently discovered on the Close Roll by Mr Tomer and printed by him in L. Q. B. xii. 299. Besides all this Matthew Paris mentions a considerable number of acts of a legislative kind, e.g. vol. v. pp. 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.

1 Bob. Grosseteste Epistolae, p. 96: Grosseteste to Raleigh: 'nee tarn idiota sum quod credam ad alicnius suggestionem te vel alium sine principis et magnatum consilio posse leges condere vel oommutare.'

1 For this see Giraud, Histoire du droit francais, ii. 24. It will be remembered that Henry's queen belongs to the house of Provence on her father's, to that of Savoy on her mother's side. Raymond himself may have copied what Matthew calls a consueludo Sabaudica.

3 The ordinance is printed in the Select Charters. Mat. Par. v. 369: ' praesertim cum tanta legis permutatio sine eommuni assensu barnagii constitui minime valuisset.'

182 The Age of Bracton. [BK. i.

royal justice may fearlessly proclaim1. 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, nobody supposed that the king even with the consent of the [p.iei] 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 state*. Theology can be brought in to explain or to conceal any difficulty that there may be in the conception of a king, who though subject to no man, is subject to the law:—God is subject to 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 admitted4. 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 king5. 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 vicar7, is

1 Bracton, f. 5b, 107; Note Book, i. 29-33. * Sidgwick, Elements of Politics, p. 21.

3 Kingsford, Song of Lewes, pp. 103-4, 113-8.

4 This matter will be discussed below when we speak of the King and the Crown.

1 Mat. Far. iii. 337—8. At Henry's coronation the earl carries the sword of St. Edward' in signum 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 Ffalzgraf might even adjudge the Emperor to death; Schroder, D. B. G., 468.

6 Bracton, f. 171 b. The question whether the violent passage on f. 34 comes from Bracton has been discussed elsewhere ; see Mote Book, i. 29—33.

7 Bracton, f. 107 b : ' Dum facit iustitiam, vicarius est Begis Eterni, minister autem diaboli dum declinat ad imuriam.'

CH. vii.] The Age of Bracton. 183

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 Unenacted

l&w flnd

(P. 162] seems to be conceived as custom (consuetude). The most im- custom, portant of all customs is the custom of the king's court. The custom may be extended by analogical reasoning; we may argue from one case to another case which is similar though not precisely similar1. 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,' or that a previous judgment was regarded as 'a binding authority'; it would but be an illustration of the custom of the court. Bracton 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 these records 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 modern 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 misrepresenting the law; he appealed from them to the great men of the past, to Martin Pateshull and William Baleigh2. On rare occasions

1 Bracton, f. 1 b: 'Si autem aliqua nova et inconsueta emerserint et quae prius nsitata non fuerint in regno, si tamen similia evenerint, per simile indicentnr, cum bona sit occasio a similibus procedere ad similia. Si autem talia nuuquam prius evenerint, et obscurum et difficile sit eorum indicium, tune ponantur iudicia in respectum usque ad magnam cnriam, ut ibi per consilium curiae terminer!tur.' 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 Dig. 1. 3. 13.

3 Bracton, f. 1, 2.

184 The Age of Bracton. [BK. i.

specific precedents (exemplci) may have been alleged in court1; in Edward I.'s day the pleaders are already citing and ' distinguishing' previous cases8; but as a general rule the judges, [p. 163} assisted by clerks, who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetiido 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 expeiienced 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 difficulty is to persuade him that he does not know everything3, easterns ^e CUS^OIU °^ *ne kiug's court is the custom of England,

and becomes the common law. As to local customs, the king's justices will in general phrases express their respect for them4. We see no signs of any consciously conceived desire to root them out5. None the less, if they are not being destroyed, their further growth is checked. Especially in all matters of procedure, the king's court, which is now obtaining a thorough control over all other courts, is apt to treat its own as the only just rules6. A heavy burden of proof is cast upon those

1 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 volueruut 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 Pateshnll (ob. 1229) and of later judges might be searched for precedents, and a precedent was produced from 1248; Eot. Parl. i. 66—7. Of course the rolls were often 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.

3 Bracton, f. 1 b: ' licet sint nonnnlli qui de propria scientia praesumentes, quasi nihil iuris ignorent, nolunt alicuius consilium expetere.'

4 Bracton, f. 1.

9 For an instance of a custom that is declared to be unlawful, see Northumberland Assize Bolls, p. 353 : ' ilia consuetude omnino eat contra orones 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.

CH. vii.] The Age of Bracton. 185

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 courts1. The instances that we get of •[p. 164] customs peculiar to counties or other wide tracts of land, such as the episcopal barony of Winchester* or the honour of Britanny3, are of no great importance. The law about frank-pledge, 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 presidency of sheriffs who will ask advice from Westminster when difficult cases come before them4. 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 but customary and will not be acknowledged by the general law nor sanctioned by the king's court. Still these manorial usages are not so various as we might have expected them to be. If a 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 justices6. 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

but as regards warranty, pleading, and battle the rules of the king's court must be observed.

1 Bracton's Note Book, pi. 834. The suitors of Havering are asked to produce a precedent (exemplum) for a judgment that they have delivered; not being able to do this, they are amerced.

* Bracton, f. 85 b : ' licet in quibusdam partibus et per abusum observetur in eontrarium, sicut in episcopatu Wintoniae'; Note Book, pi. 282.

3 Note Book, pi. 623 : ' tails est consuetude in feodo Comitis Britanniae.'

4 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.

9 Select Fleas in Manorial Courts, p. 3.

186 The Age of Bracton. [BK. i.

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 consuetude of the borough will be the lex of the borough, and sometimes it will be solemnly committed to writing1. But even here there is less variety than we might have looked for. The aspiring town was [p. 165] often content to receive as a privilege the custom of some famous borough, Winchester or Bristol or Oxford, and thenceforward in case of doubt it would send to its mother town for an exposition of the rules that should guide it2. 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 differences 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.

Kentish Kent is somewhat of an exception; it has a considerable

body of customs; there is a lex Kantiae3. In Edward I.'s day a written statement of these customs was sanctioned by the king's justices in eyre4. In the main they are concerned with the maintenance of a peculiar form of land-tenure known as gavelkind. The 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 other6. There is in Kent a large class of landholders, 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

1 More will be said of the borough customs in a later chapter.

2 Gross, Gild Merchant, i. 259.

9 Note Book, pi. 1644 : ' secnndum legem Kantiae.' 4 Statutes, i. 223.

s Elton, Tenures of Kent, p. 29. In the form gavelingude the word occurs on our earliest plea roll; Bolls of King's Court (Pipe Roll Soc.}, p. 43. 6 Statutes, i. 228; T. B. 30—31 Edw. I. p. 168.

CH. VIL] The Age of Bracton. 187

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 DP- 166] accounting for the lex Kantiae is that of explaining a passage in the social and economic history of England, and a 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 Danelaw1. 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 proverbs, 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 has to be explained to the time which lies on this side of the Conquest2. 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 that which is most exposed to foreign influences. The great roads which join London to the seaboard are the arteries along which flows money, the destructive solvent of seignorial power. The tillers

1 In Domesday Book and older charters Kent is distinguished by peculiar land measures, the suiting and the yoke (iugum). Also it had been lightly taxed; Maitland, Domesday Book, 466, 484. 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 sokemanni 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 custumal 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.

188 The Age of Bracton. [BK. i.

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 manorial rights. The gavel-kinders are prosperous; they purchase a royal charter from Henry III.1. There is general prosperity in Kent: even the knights of the county are anxious that the lex Kantiae should be observed*. All classes in the county seem to be bound [p-167] 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 grow4. But on the whole, the brief Kentish custumal of the thirteenth century is only a small exception to the generality of the common law.

^rEn^h English law was by this time recognized as distinctively law. English, and Englishmen were proud of it. From time to time

rumours went round that the king's detestable favourites were going to introduce foreign novelties from Poitou or Savoy. In a case for which no English precedent could be found our king's court refused to follow foreign, presumably French, precedents5. 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 a mistake, for the Roman jurisprudence was but slowly penetrating into northern France and had hardly touched Germany; but it served to make a great contrast more emphatic: England was not governed by the leges scriptae. All men know how at the Merton parliament the assembled barons declared with one voice that they would not change the laws of

1 Statutes, i. 225. » Note Book, pi. 1338, 1644.

3 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.'

4 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.

9 The case as to the partition of the Chester palatinate; see above, p. 184. 6 Bracton, f. 1.

CH. vii.J The Age of Bracton. 189

England1. 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 [p. 168] marriage of their parents, we should hardly have suspected our barons of having a strong and unanimous opinion on so arguable 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 final2. 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 against the laws and canons and consensus of Christendom".

Of' equity' as of a set of rules which can be put beside the Equity. rules of ' law,' or of courts whose proper function is the administration, 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 oequitos 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 England4. 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 forms for the purposes of chicane; it means

1 Note Book, i. pp. 104—115. We have no authoritative text of this famous resolntion; but the last word of it seems to have been mutare, not mutari.

s Delisle, Recueil de jugements, p. 139 : ' Judicatum est quod ille qui natus fuit ante sponsalia sive post est propinqnior heres ad habendam hereditatem pa trie... si sancta ecclesia approbet maritagium.'

s Bob. Grosseteste Epistolae, 76—97. Grosseteste (p. 97) writes to Raleigh : 'Indnxistis testimonium Kicardi de Luci; cnius teetimonium quantam et qnalem 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.

4 Brunner, D. B. G. ii. 135—6.

190 The Age of Bracton. [BK. I.

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 powers is an exhibition of' equity.' Often on the plea rolls we [p. 169] find it written that some order is made ' by the counsel of the court' (de coiisilio curiae). It is an order that could not be asked for as a matter of strict right; the rigor iuris does not 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 action1.' The need of a separate court of equity is not yet felt, for the king's court, which is not as yet hampered by many statutes or by accurately formulated ' case law,' can administer equity.

The king's In the middle of the thirteenth century the high courts that do justice in the king's name are rapidly taking what will long be their final form. When in 1875 a Supreme Court of Judicature once more absorbs them, the Court of King's Bench, the 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 impossible, 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 the later middle ages we might be justified in saying that each of 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 this memory takes the shape of a continuous series of written records.

1 Glanvill, vii. 1: ' aliquando tamen super hoc ultimo casu in curia domini Begis de consilio curiae ita ex aequitate consideration! 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 we may sometimes see a contrast between rigor and aequitas; Y. B. 30-1 Edw. I. 120.

s The exchequer plea rolls do not begin until far on in Henry III.'s reign ; much 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 numerous sets of rolls which set forth the more purely financial business in the form of accounts.

CH. vii.] The Age of Bracton. 191

At what we may call an early time the exchequer ceased to The exche-be a phase of the general governing body of the realm, and quer' became a department, with a seal and many records of its own, a financial department1. In Bishop Richard's Dialogue we still see all the great ones of the kingdom seated round [p. 170] 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 reign1, and the writs that it issues are tested by the senior baron8; as yet there is no 'chief baron8.' From the beginning of the reign onwards men are definitely appointed to be barons of the exchequer4. They are chosen from among the king's clerks, but they keep the old title and are sufficiently the ' peers' of the barons of the realm to enable them to inflict amercements on noble offenders. The treasurer is the head of the court whatever it may be doing. The position of the chancellor of the exchequer is subordinate; 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 barons5.

The exchequer is called a curia*. In our view it may be a Work of compound institution, in part a judicial tribunal, in part a quer. 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 hereditary sinecures7—and in this matter he is not controlled by the barons. But then in this matter he has little discretion, for he dares issue no penny save in obedience to an order which comes to him under the great or the privy seal; even for

i Madox, Exchequer, ii. 51. " Fleta, p. 82.

3 Fosa, Judges, iii. 196. 4 Madox, Exchequer, ii. 54.

5 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.

6 Fleta, p. 81: 'Habet etiam Bex curiam snam et iustitiarios suos in Scaccario apud Westmonasterium residentes.'

7 Madox, Exchequer, ii. 295.

192 The Age of Bracton. [BK. I.

every payment of an annual salary he requires such a warrant from above1. There was, however, some rivalry between the two departments, and during some late years of Edward I.'s reign the treasurer, rather than the chancellor, was the king's first minister2. The main work of the court or board over which he presides is that of collecting the king's revenue. It tP- i?i] 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 money 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 right8. If a question of general law is 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 exchequer' 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

1 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 exchequer ' current liberates,' or, as we might say, standing orders for the payment of periodical charges, was adopted.

5 Hughes, The Parliament of Lincoln, Trans. Eoy. Hist. Soc. ix. 41.

3 Rolls 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.

CH. vii.] The Age of Bracton. 193

that had been exercised by the exchequer when it was a phase of the as yet undifferentiated ' curia,' than to usurp a new function. 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 [p. 172] and 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 victor}' belongs to a later time than that of which we are speaking1.

Men are beginning to speak of the chancery as a curia*', but T^16 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 utriusque 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

1 The carious point is that in this matter the barons seem to have acted in defiance not merely of laws and ordinances bat of the king's own interests. Whether the well-known phrase in the Charter ('Communia placita non seqoantur coriam nostram sed teneantnr in aliquo loco certo') was originally intended to deprive the exchequer of jurisdiction over common pleas is doubtful; but that intention was authoritatively attributed to it in Edward I.'s day. We find Edward laying down the prohibitive role not merely in the Articnli 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.

2 Fleta, p. 66: ' Habet etiam [Bex] curiam suam in cancellaria sua.' 9 Stubbs, Const. Hist. i. p. 381.

P. M. I. 13

194 The Age of Bracton. [BK. I.

world over1. Very little was done by the king that was not done by a document bearing the great seal; it was ' the key of the kingdom8.' The exchequer and the two benches had indeed [p. ITS] 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 seal4, and very many of the writs thus authenticated 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 will8. Confidential clerks or 'secretaries,' (for this word was coming into use) were beginning to intervene between the king and his chancellor, sending to him written, or carrying to him oral messages6. 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

1 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 L 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.

! Mat. Par. Chron. Maj. v. 130.

3 Writs issued by the court in the course of litigation are brevia, 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.

4 Articuli super cartas, 1300, c. 6 (Statutes, i. 139).

5 The large collection of privy seal writs in the Record Office begins in Edward I.'s reign.

* Maitland, Memoranda de Parliamento, 33 Edward I., p. xxxvii.

7 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 Monastic!, ii. 393, iv. 477.

CH. vn.] Tlie Age of Bracton. 195

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 documents1, [p. 174] 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 course8.'

The number of writs which were issued as of course for the T1*e 01?si-

nal writs.

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 recover4. 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 easily drawn5. That the poor should have their writs for nothing, was an accepted maxim'. The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarif); it consisted chiefly of

1 The best introduction to them will be found in B&nont, Roles Gascons (Documents inedits), Paris 1896.

2 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. The Record Office contains large stores of these writs.

* Harv. L. B., iii. 175.

4 Excerpta e Botulis Finium, i. 29, 49, 62, 68; Harv. L. B., iii. 12.

8 Fleta, p. 77. 6 Fleta, p. 77; Excerpta e Botulis Finium, ii. 101.


196 The Age of Bracton. [BK. I.

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 writ1. 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 more serious matter—and they were made somewhat freely2. [p.i75] To take the best example, towards the close of Henry's reign the action of trespass, which is 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 a while the foremost judge in the king's court3. For some years before the barons' war Henry attempted to govern without a chancellor or with a chancellor who was such only in name4; 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 illegal5. Complaints against new and unaccustomed writs grew loud6. 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 list8. On the other hand,

1 Fleta, p. 77-8. « Bracton, f. 413 b-414 b.

• Harv. L. B., iii. 173-4-6.

4 Mat. Far. Chron. Maj. iii. 364, 491, 495, 530.

5 Ibid. iii. 629 ; v. 594.

• This begins as early as 1244; ibid. iv. 363, 367; vi. 363. 7 Ann. Barton, 448.

• Placita de Quo Warranto, 681, 686: writs brought by the king are quashed b; the judges. Bolls of Parl. i. 52: Edward complains to his council that a particular case has occurred which is not exactly met by any of the three writs of escheat current in the chancery.

CH. VIL] The Age of Bracton, 197

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 rarely that we hear of the chancery or the chan- ^i^*n^ cellor performing any work that can fairly be called judicial, tribunal. The issuing of the 'original' writs was not judicial work, though [p. 176] we may learn from petitions addressed to the chancellor and from other sources that it was not always done mechanically: a friend of the chancellor might hope for a few words in his writ that a stranger would hardly have obtained'. Of any ' equitable jurisdiction' 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'. Jn 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 which will be instructed by a writ from the chancery to hear his claim and do what is just. Commonly 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*.

1 Boyal Letters, i. 68, 276, 282; ii. 48.

8 Hale, Jurisdiction of the House of Lords, 47; Blackstone, Comm. iii. 48.

3 See Bolls of Parliament, vol. i. passim, and Maitland, Memoranda de Parliamento, 33 Edward I. An instance of a ease committed to the chancellor occurs in Bolls of Parl. 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

198 The Age of Bracton. [BK. I.

The two The king's court—to say no more of the exchequer and the [p. 177]

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 realm1. 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 Westminster2. 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 may in some sort supervise 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 courts, each of which has its own set of rolls8. 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 records 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 wheresoever 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 place4. Thus 'the bench' has become the appropriate tribunal for

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 hia 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.

1 Above, p. 153.

3 Select Pleas of the Crown (Selden Soc.), pp. xiii-xix.

3 Note Book, i. pp. 56-58. « Charter, 1215, c. 17.

CH. vii.] The Age of Bracton. 199

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 legislation1. The court held coram rege is superior to, for it can correct the errors of,' the bench *'. Then [p. 178] early in Edward I.'s reign ' the 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 Council,


Henry's reign is held coram rege breaks into segments. For and 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 modern 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. 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

1 It is of comparatively late origin. There are many criminal cases on the de banco rolls of Edward I.

8 Note Book, pi. 1166,1189, 1190.

* In discussions of this, obscure matter it has too often been forgotten that so long as there was a Court of Common Pleas 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.'

200 The Age of Bracton. [BK. i.

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 roll1. 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 the chiefs of the great offices, all the masters [p. m] in chancery and so forth, are members of the council, and, if they are not wanted elsewhere, will be summoned to those plenary 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 must answer these questions; the thirteenth leaves them open2. Itinerant As to the courts held in the king's name by men who are justices, acting under temporary commissions, men who in 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 latter part of Henry IIL'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

1 Hale, Jurisdiction of the House of Lords, p. 53.

- The problem for the fourteenth century is neatly raised by the words of Fleta, p. 66: ' Habet enim Bex curiam snam in concilia tuo in parliamentii suit, praesentibns praelatia, comitibns, baronibus, proceribus et aliis 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, Memoranda de Parliamento, 33 Edw. I., Introduction, p. Ixxix.

3 Thus Cambridge gaol seems to have been delivered about twenty-four time* in seven years, beginning with 2 Edw. I., the deliverers being usually Cambridgeshire knights. Reports of Dep. Keeper, xliii-xlix.

CH. VH.] The Age of Bracton. 201

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 j knights with himself. Apparently a justice of assize had often

to visit many towns or even villages in each county; his work [p. iso] was not all done at the county town1. It must have been heavy, 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 was by this time a long and laborious business. In the first place, if we suppose an eyre in Cambridgeshire announced, this has the effect 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 counties3. 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 presented4. 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

1 Bracton took Devonshire assizes at Exeter, Morchard, Molton, Torrington, Chulmleigh, Barnstaple, Umberleigh; Note Book, i. p. 17. 3 Calendar of Patent Bolls in 43rd Hep. of Dep. Keeper.

3 Daring Henry's reign there seem to have been several years in which no court was sitting at Westminster, eyres having been proclaimed in all or most of the counties: Note Book, i. pp. 141-2.

4 As to these articles see Select Pleas of the Crown (Selden Soc.), p. xxii. More of them in our section on Trespasses.

202 The Age of Bracton. [BK. i.

amercements1. 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 eyre2. Probably it was thought expedient that some of the great [p.isi] 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 years4. Expedients were being adopted which in course of time would enable the justices of assize to preside in the country over the trial of actions which were pending before the benches; thus without the terrors of an eyre, the trial of civil actions would take place in the counties and jurors would no longer be called 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 sight5.

Triumph The king's courts have been fast becoming the only judicial

justice. tribunals of any great importance. Throughout the reign the bulk of their plea rolls increased at a rapid rate. Every term the bench at Westminster entertained a multitude of causes. The litigants who came before it were often men of lowly rank who were quarrelling about small parcels of land. Though we

1 The proceedings of an eyre can be best studied in Page, Three Assize Bolls for Northumberland (Surtees Society), and in the rolls which Mr Chadwyck Healey is publishing for the Somersetshire Record Society.

2 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.

3 Ann. Dunst. p. 135 (1233): ' quorum metu omnes ad silvas fngerunt.'

« Ann. Wigom. p. 446 (1261). Close Boll, Hen. III. No. 77, m. 9d: an eyre in Norfolk is postponed as seven years have not elapsed since the last eyre.

5 A 'nisi prius' clause was occasionally used as early as 1225; see Note Book, pi. 721 and many other cases. The burden of jury service was not 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'ancestor; (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, constituted of knights.

CH. vii.] The Age of Bracton. 203

hear some bad stories of corrupt and partial judges1, 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 Westminster. Of his own free will the small [p. 182] freeholder passed 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 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, ' omnicompetent,' land 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 principle. He explains or even apologizes for certain manifestations of kingly justice which may seem to be at variance with feudal rules4. But still this principle is at work: it is the king's business to provide a competent remedy for every wrong5.

The number of the justices whom Henry kept in his pay Thejudges. was never large. If there were some three or four in his train

1 Mat. Par. v. 213, 223, 240, charges against Henry of Bath; v. 628, against Henry de la Mare.

1 Charter, 1215, c. 34.

3 Petition of 1258, c. 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'ancestor; c. 6, procedure in dower wide nihil habet (an action which controverts feudal principles) is to be speedier; c. 18, the royal control over all 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.

4 Bracton, f. 106, a defence of dower unde nihil habet; f. 281, a defence of the writ of cosinage; comp. Note Book, pi. 1215.

E Bracton, f. 414 b: 'pertinet enim ad regem ad quamlibet iniuriam com-pescendam remedium competens adhibere.'

204 The Age of Bracton. [BK. i.

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' seems to have but three, or even but two, occupants1. 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 disengaged from governmental business. The office of a chief [P.ISS] 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 Geoffrey Fitz Peter, for he 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 Robert de Brus, the future 'competitor' 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 justice3. 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

1 Note Book, i. pp. 144-5.

2 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 modern artifice. The change of style was really a very small one; it consisted in adding to the old title 'Capitalis Justiciarius Angliae' the limiting words ' ad placita coram Bege tenenda.' " So long as Latin is used, a justice is a iuiticiarius, a chief justice is a capitalii iueticiariitt. In the twelfth century iuttitia had been the commoner title.

3 FOSE, Judges, iii. 142, makes Gilbert Preston the first chief justice of the common pleas.

CH. vii.] The Age of Bracton. 205

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 state1.

Many of them were ecclesiastics; among such we may Clerical reckon Martin Pateshull, William Raleigh, Kobert Lexington, William of York, Henry of Bratton. Even Stephen Segrave seems to have had enough of the clerk about him to serve as a [P. 184] 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 canohries, 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 justices4; but even of Edward L's justices not a few were clerks. This is no small change; it means that the study of English law is falling apart from all other studies. Just at the same time 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 chancery5. The change brought good with it and evil. Our

1 Note Book, i. pp. 24-5. * Mat. Par. Chron. Maj. iii. 293.

' oc. 1, 2, 4, 5,10, X. 3, 50. Ann. Barton, p. 308-9: Articles of inquiry into the life of the clergy; 'An aliqui sint...iustitiarii saeculares...An aliqui benefi-ciati andiant vel doceant leges saeculares.' Grosseteste, Epist. p. 266: Eobert 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 'suspendatnr':—'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 abnndans possessionibus legisqne peritus saecnlaris.' Ibid. v. 317: 'Eogerus de Thurkebi miles et literatns.'

9 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 Pateshull was clerk

206 The Age of Bracton. [BK.. i.

judges became a little less dependent on the king than they had been; our law was protected against Romanism and our constitution against the monarchical doctrines that Romanism [P. 185] 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. Bracton's book is the crown and flower of English medieval

jurisprudence. What we know of its author has been written elsewhere, and may here be summed up very briefly1. 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 was holding a dispensation granted by Raleigh and confirmed by Innocent IV. for the tenure of three benefices. 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. We may see him witnessing the king's charters along with the great folk of the realm. 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 Combe-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 was told to restore to the treasury the large store of plea rolls, those of Martin Pateshull and William Raleigh, which had been in his possession. Whether he was disgraced, and, if so, whether he had offended the king or the

to Simon Pateshull (see above, p. 169), that William Raleigh was Martin's clerk (Maitland, Gloucestershire Fleas 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 yon from the depths; you were the scribbler of my writs, a justice and a hireling,' says King Henry; Mat. Par. Chron. Maj. v. 374.

1 See Bracton's Note Book; also Bracton and Azo (Selden Soc.).

CH. vii.] The Age of Bracton. 207

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': that is, of those who had sided with Simon de Montfort.

His 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 annotating it at a later time; but at present we can not always [p. 186] distinguish his own addiciones from those of later commentators. 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 Pateshull 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 head1.

Romanesque in form, English in substance—this perhaps is character the best brief phrase that we can find for the outcome of his ton's work, labours; but yet it is not very good2. He had at his command and had diligently studied the works of the famous Italian lawyer, Azo of Bologna; he also made some use at first hand of Italian various parts of the Corpus luris Civilis, of the Decretum, 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 shared his bent, the romano-canonical jurisprudence would have become a 'subsidiary law' in England: that is, a law to be adduced when enacted law and customary law had no clear answer for a question; but we can not treat his book as a

1 Bracton's Note Book, vol. i. The discovery was due to Prof. Paul Vinogradoff.

2 See Gttterbock, Henricus de Bracton; Scrutton, Roman Law in England; Bracton and Azo (Selden Soo.).

208 The Age of Bracton. [BK. I.

proof that such was the case in his own day1. We do not know that any of his fellows had more than that superficial acquaint- [p-187] ance 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.' But further, his own knowledge of Roman law was by no means very deep when judged by the standard of his time, and we have little reason for believing that he had acquired it academically. His neology leaves no mark on the technical language of the courts; the 'tenant for term of years' does not become an 'usufructuary'; and if upon a plea roll we find a litigant made to talk about the corpus and animus necessary for possession, we shall find that the roll is Bracton's own8. 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*.

English On the other hand, the main matter of his treatise is genuine

English law laboriously collected out of the plea rolls of the

1 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; 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 hare 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, when in England, be a subject and vassal of the king of England. Bicardns Bex Alemanniae (he was Rei Romanorum temper auguttui) was impleaded for a novel disseisin; Placit. Abbrev. p. 145.

3 Abbrev. Placit. p. 128: 'nunquam se dimisit de terra ilia corpore nee animo.' This is from one of the rolls which record Bracton's doings as a justice of assize. They are to be edited by Mr Chadwyck Healey. As to the usufruct, see Note Book, i. p. 91-93.

8 Bracton, f. 2 b, 3: ' lus dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iustitiam namque colimns et sacra iura ministramns.1 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.

CH. vii.] The Age of Bracton. 209

king's court. He expressly cites some five hundred decisions, 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 modern, our very modern, 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 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 [p. 188] history in order to secure a triumph for English law1. 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 churchman, 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 his 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 monarchy1.

The book was successful. Some forty or fifty manuscripts Later law

i Note Book, i 104-116.

1 For the anti-feudal inclination see the argument in favour of free alienation; Bracton, f. 45b-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. pp. 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. 171 b is enough to show that he was neither a courtly flatterer nor a champion of despotic 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 placnit'

P.M. I. 14

210 The Age of Bracton. [BK. I.

of it will seem a sufficient body of witnesses to attest its popularity, especially when we remember that the text of some of our oldest Year Books has to be sought for in 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 it1. 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 affairs which were becoming popular*. The so-called ' Britton' has better claim [p-189] 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 useful, 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 Ralph Hengham, one of Edward L'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 IIL's reign when Bracton fails us. After all that has been done towards publishing the records of that reign, we shall still be 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 not very difficult—between his statement of English law and his cosmopolitan jurisprudence.

Other law Qf other law books of Henry's reign little is known and

Henry's little need be said; the gap between them and Bracton's Summa

reign. .g jmmense_ Copies of the chancery's '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, and now in the

press, an interesting book of precedents for the use of pleaders

1 Selden, Dissertatio ad Fletam, p. 456.

9 Nichols, Introduction to bis edition of Britton.

3 Walter of Henley, ed. Lamond and Cunningham.

CH. VIL] The Age of Bracton. 211

in the king's court which belongs to Henry's time1, and from that time we begin to get precedents for the use of pleaders in the local courts, conveyancing precedents, and precedents for manorial accounts1; also brief disquisitions on rural economy which throw 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 are being supplemented by the rolls of local courts4, while much may be learnt from the manorial surveys or' extents,' numerous examples of which have been preserved in the monastic cartularies and elsewhere.

[P. 190] Before the end of the thirteenth century there already exists The legal ,,.. ir t. i n profession

a legal profession, a class of men who make money by representing litigants before the courts and 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 lawsuit depends upon the exact words that the parties utter when they are before the tribunal, it is hardly right 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 answer. Still in yet Pleaders, 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 Henrid it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once; in all other cases a man may have counsel*. What is more, it is by this time permitted that one

1 Brevia Placitata, now being edited by Mr 6.1. Turner.

* The Court Baron (Selden Soe.), Introduction.

1 See the edition of Walter of Henley cited above.

4 Select Pleas in Manorial Courts (Selden Soc.), Introduction.

1 Brunner, Forschungen, p. 389; Brunner, D. B. O. ii. 349.

< Leg. Henr. 46, 47, 48, 49, 61 § 18, 19.


212 The Age of Bracton. [BK. I.

of those who ' are of counsel with him' should speak for him. The 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, but what a friend has said in his favour he may disavow1. The professional pleader makes his way into the courts, not as one [p.191] 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 we 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 blunder2. 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 the plea*. 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 disavowed4.

Attorneys. It is otherwise with the attorney, for the attorney represents his principal: he has been appointed, attorned (that is, turned to the business in hand), and for good and ill, for gain and loss

1 Leg. Henr. 46 § 3: 'Bonnm autem est, ut cum aliening consiliom in placito redditur, cum emendations dicendnm praedicatur, ut si forte perorator Tel superadiecerit aliqnid, vel omiserit, emendare lioeat ei. Saepe enim fit, ut in sua causa quis minus videat quam in alterius, et in ore alterins plerumque poterit emendare quod in suo non liceret.'

3 Note Book, pi. 298. So in pi. 131: ' deadvocat quod narrator suns pro eo narravit.' So in pi. 1106: 'Alarms de Waxtonesham qni narravit pro Eustachio in misericordia, quia Eustachius deadvocavit id quod pro eo narravit.'

* The Court Baron (Selden Soc.), p. 41. References to this practice may be found in the Year Books, e.g. Y. B. 33-5 Edw. L, pp. 297, 458.

4 Mat. Par. Chron. Maj. iii. 124. It is noticed as somewhat strange that in 1227 the king's brother Earl Eichard of Cornwall should urge his claims before the king 'sine aliquo advocate rationabiliter simnl et eloquenter.'

CH. vii.] The Age of Bracton. 213

(ad lucrandum et perdendum) he stands in his principal's stead. In England and in other countries the right to appoint an attorney is no outcome of ancient folk-law; it is a royal privilege. The king, as is often the case, has put himself outside the old law: he appoints representatives to carry on his multitudinous law-suits, 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 [p. 192] right of appointing an attorney, or rather, for the word attorney is hardly yet in use, a responsalis\ But the right is narrowly limited. The litigant must appear before the court in his proper person and must there 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 attorneys to act for him in future litigation*. Such writs are by no means matters of course; they usually recite some special reasons why an exceptional 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 infirm for laborious journeys*. In the communal courts a litigant could not appoint an attorney unless he had the king's writ authorizing him to do so*.

The attorneys of the period which is now before us do not Attorneys seem to be in any sense ' officers of the court,' nor do they as sional. 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 attorney4. A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally, however, as we look down the list of attorneys we see the same names repeating themselves, and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A change comes in Edward L's day which

i Glanvill, lib. xi.

3 Bee 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, ff. 20-22.

4 Britton, vol. ii. p. 357.

5 Select Civil Pleas, pi. 141.

« Note Book, pi. 342, 1361, 1507.

214 The Age of Bracton. [BK. i.

gives a new definiteness to the class of attorneys as well as to the class of counsellors.

Profes- Recurring for a moment to the class of counsellors, we

pleaders, observe that 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 train1. For his litigation in the ecclesiastical courts he naturally required professional aid, and he had it from Italian lawyers resident in [p. 1931 this country; among them was Master Ambrose, who was in every sense one of the first lawyers in England, first in time as well as first in learning*. But even in the king's court he was surrounded by friends and helpers and pleaders, and among them was Ranulf Glanvill*. For a long time, however, we hear very little of professional counsellors in the temporal courts. This is the more noticeable because Matthew Paris is full of complaints against the pack of bellowing legists whom the king employs and whom he lets slip whenever an episcopal election goes against his wishes4. They are not men 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

1 See above, p. 158.

2 Gesta Abbatum, i. 136: 'Robertas [Abbas S. Albani]......Magistrum

Ambrosium, clericnm suum, legis peritissimum, Italicum natione (de primis tempore, scientia et moribus, Angliae legis peritis) Romam...destinavit.' See also Laebermann, E. H. B. xi. 313-4.

» On 31 March, 1163, Glanvill appeared along with Anesty at Windsor; at Michaelmas in that year he became sheriff of Yorkshire.

4 Mat. Par. Chron. Maj. iii. Ill: ' Ricardns de Marisco Dunelmensis episcopns...cnm tumultu valido reboantium legistarum.' Ibid. 531: 'Miserat enim {rex] ad curiam Bomanam unum legistarum suorum, quorum magnam catervam retinuit, quasi venator canes venaticos, super electores praelatornm discopnlandos, videlicet Simonem Normannnru.' Ibid. 268, 'Rogerum de Cantelu legistam'; 483, 'Magister Odo [de Kilkenny] legista'; 491, 'legistas suas Romipedas'; 491, 'Simonem Normannum et Alexaudrum Saecularem legistas conduct!ties'; iv. 266, 'Alexandrum legistam, cognomento Saecularem.1

* See above, p. 122.

8 Thus, iii. 190, Pateshull is 'legum terrae peritns'; iii. 525, Raleigh is •legum terrae peritissimus'; iv. 49, Multon is 'legis peritus'; iv. 587, William of York is ' legum regni peritissimus.'

CH. vii.] The Age of Bracton. 215

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 com-[p.194] monly call counters1.' In 1268 'a counter of the bench' assaulted a justice of the Jews in Westminster Hall; his fellow counters interceded for him2. The king already seems to have permanently 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 (causidici), saving pleas of the crown, pleas of land, and pleas of unlawful distraint3. 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 duty and not to pervert justice4. Thus a close body of professional advocates was formed, and this would serve as a model for a similar body of professional ' counters.'

Then in Edward L's day we see that the king has retained Regulation

, , , , , . . :r . « , of pleaders

pleaders who are known as his servants or serjeants at law and attorneys.

1 Mai Far. Chron. Maj. iii. 619: ' licet Bex cum omnibus prolocutoribus banci quos narratores vulgariter appellamus in contrarium niteretur.' The Latin narrator and its French equivalent contour became technical terms. If an English term was in use, it was perhaps fanpeaker.

1 Madoz, Exchequer, i. 236.

8 Liber de Antiquis Legibus, 42-3.

« Mat. Par. Chron. Maj. iii. 439-440; Job. de Athona, p. 70.

216 The Age of Bracton. [BK. I.

(servientes ad legem). Already in 1275 it is necessary to threaten with imprisonment ' the serjeant counter' who is guilty of collusive or deceitful practice1. 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 some exclusive right of audience. In that year King Edward directed his justices to provide for every county a sufficient number of attorneys and apprentices [p. 195] 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 number2.

Puch" ^ tn*s measure> which, however, may not have been the

of the first of its kind,' both branches of the profession' were placed pro esnon. un(jer ^ con^roi of £ne justices, and apparently a monopoly was secured for those who had been thus appointed*. Some twelve years earlier the mayor and aldermen of London had been compelled to lament the ignorance and ill manners of the pleaders and attorneys 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 countor 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 countor speaks on behalf of a litigant who is present in court either in person or by attorney. The civic fathers were further compelled to threaten with suspension the pleader who took money with both hands or reviled his antagonist4. It is from 1292 that we get our first Year Book, and we see that already the great litigation of the realm,

1 Stat. West. I. c. 29.

8 Bolls of Parliament, i. 84.

1 So early as 1253 the bishop of Rochester was impleaded by the archbishop of Canterbury in the lung's court,' et Abell de S. Martino venit et narravit pro episcopo et non fuit advocatus; ideo in misericordia'; 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.

4 Liber Custumarum, i. 280 (A.D. 1280).

CH. vii.] The Age of Bracton. 217

the litigation which is worthy to be reported, is conducted by a small group of men. Lowther, Spigornel, 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 Ramsey ordained that none of his tenants was to bring a pleader into his courts to impede or delay his seignorial justice1, and in 1275 we find one William of Bolton practising in partnership with other pleaders before the court (P. 196] of the fair of St Ives*. Many details are still obscure, 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 attorneys on the other, and both of them derive their right to practise from the king either mediately or immediately'.

So soon as there is a legal profession, professional opinion is Profes-among the most powerful of the forces that mould the law, and opinion, 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*.

That the professional pleader of Edward I.'s day had learnt Decline of law as a science, had attended lectures or read books, we do not omamsm 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, Cogi possessorem etc.1' 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

1 Cart. Bams. i. 428.

1 Pleas in Manorial Courts (Selden Soc.), 155, 159,160.

* 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 (narratorei) 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.'

4 See e.g. Y. B. 30-1 Edw. I. p. 107.

Y. B. 33-5 Edw. I. p. 471. The allusion is to Cod. 8. 31. 11: ' Cogi possessorem ab eo, qui expetit, titulum suae possessionis dicere, incivile est.'

218 The Age of Bracton. [BK. I.

for them1. They could be easily found ; the Decretals of Pope Boniface Vill, end with a bouquet of these showy 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 wane, is already very slight. Transcribers who can copy correctly [p-W] 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*.

Notaries In England that Roman institution, the notarial system,

veyancera. never took deep root4. Our kings did not assume the 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 framed the most magnificent record of King Edward's justice, the record of the suit in which the crown of Scotland was at stake5. 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 continental canonists a bad repute because of their careless and inartistic records. This we learn from an Italian notary, one

1 Y. B. 88-5 Edw. I. p. 9; 30-1 Edw. I. p. 57; 21-2 Edw. L 295.

8 De regulit iurit, in vi".

1 Britton (ed. Nichols), ii. 65.

4 Constitutions of Otho (1237), Mat. Par. iii. 438; Job. de Athona, p. 67: ' Quoniam tabellionum 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. B. vii. 66. We mast remember, however, that a mercantile bond should be so attested that it will be valid in foreign courts.

9 Foedera, i. 784: 'Ego Johannes Erturi de Cadomo apostolicae sedis auctoritate notarius.' This John Arthur of Caen was a master of the chancery.

CH. vii.] The Age of Bracton. 219

John of Bologna, who dedicated to Archbishop Peckham a collection of judicial precedents, destined—so its author hoped —to reform our slovenly insular documents1. In later days there were always some apostolic notaries in England. In the Qf. 198] 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 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 universities. From the second half of the thirteenth century we begin to get books of precedents, and sometimes the formulas of purely temporal transactions will be mixed up with instruments destined to come before the ecclesiastical courts*. From the Norman Conquest onwards the practice of using written instruments slowly spreads downwards from the king's chancery. The private deeds (cartae) are for the more part very brief, clear and business-like instruments; they closely resemble those that were executed in northern France. The most elaborate documents are those which proceed from the king's court. If a man wishes to do with land anything that is at all unusual, he does it by means of a fictitious action brought and compromised in the king's court. The instrument which records this compromise, this ' final concord' or ' fine,' will be drawn up by the royal clerks, and one copy of it, the so-called ' foot of the fine,' will remain with the court. By this means, before the thirteenth century is out, some complex 'family settlements' are being made. Also the Lombard merchants have brought with them precedents for bonds, lengthy, precise and

1 Bethmann-Hollweg, Civilprozess, 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, qnae secnndum formam Romanae cnriae vel idoneam aliam qualemcunque intellectum et notitiam habeant eorum quae ad artem pertinent notariae.' From the ignorance of the English scribes 'iudioibus obprobrium et partibus inoommodum saepe proveninnt.' John of Bologna seems to have been employed by Peckham and to have obtained a benefice in Wales: Peckham's Begister, i. 45, 278; iii. 1009.

1 Maitland, A Conveyancer in the Thirteenth Century, L. Q. B. vii. 63; The Court Baron (Selden Soc.), pp. 7, 12-14.

220 The Age of Bracton. [BK. I.

stringent forms, which they compel their English debtors to execute1.

Knowledge On the whole it is hard for us to determine the degree to ' which 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 for the ordinary lawyer—and it was fully admitted that the prudent litigant should employ a skilful pleader2. Even [p. 199] the writer of the Leges Henriri had observed that we better understand another person's cause than our own3. 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 attorneys seemed enough. A great deal of legal business was still being transacted, a great deal of justice 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 making 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 attending 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 Pateshull, 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 English law was already spreading beyond the bounds of

Wales. England. In 1272 the time had almost come when Wales

would be subjugated and Edward's great Statutum Walliae',

the most comprehensive code that any English legislator issues

1 A good specimen is given in Mat. Par. iii. 329; but many may be found elsewhere.

! Y. B. 30-1 Edw.: ' Defaute de bon serjaut fet B perdre sez deniere.' 3 Leg. Henr. 46 § 3. * Statutes, i. 55.

CH. vii.] The Age of Bracton. 221

during the middle ages, would be promulgated. Meanwhile in the marches English and Welsh law had met; but the struggle was unequal, 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 [p. 200] kinsmen of the slain, and they ask that this ancient usage ; may be observed1. 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 English smaller England has been created across the Channel, with Ireland, 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 parliaments8. It is probable however that, even in those parts of Ireland which were effectually subject to English domination, the native Irish were suffered to live under their old law so long as they would keep the king's peace; but we may see Innocent IV. intervening to protect them against what seems to be an iniquitous

1 Note Book, pi. 1474.

3 Royal Letters, Henry III., vol. ii. p. 353: 'Vestram rogamus regiam dignitatem quatenus...leges terrarnm vestrarum ubique per Walliam et per Marehiam nobis concedere velitis, et hoc est, quod innocens non puniatur pro nocente, nee etiam imputetor parentelae alieuius si aliquis de parentela interfecerit aliqnem vel furtum vel aliquam seditionem [fecerit] nisi ipsi malefactori.'

' As to the transmission of the register, see Harv. L. R. iii. 110. For an early case in which an Irish judgment is corrected in England, see Rot. Cl. p. 549; there are several other cases on the rolls of Edward I. For Irish petitions to the English council, see Memoranda de Parliamento, 33 Edw. I. p. 232.

222 The Age of Bracton. [BK. I.

application of the system of'personal law1.' Individual Irishmen, like the men of the Welsh Kerry, 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* fine8.

English Whether the king of Scotland was in any degree subject to

tishlaw. the king of England, was a question about which Englishman and Scot would have disagreed in the year 1272 and about which they will hardly be brought to agree even now. Old precedents of homage and release from homage were being [p. 201] treasured on either side of the border and were soon to be brought into debate. But the utmost claimed for the English king was a feudal overlordship, and English law, as English law, had no power north of the Tweed. Nevertheless, we may doubt whether a man who crossed the river felt that he had passed from the land of one law to the land of another. 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 feoffment from an English, 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 beyond the Forth it is not for us to hazard a word, but for long ages past the law that prevailed between Forth

1 Calendar of Papal Registers, i. 283: Constitution (1253), whereby in the province of Cashel the evil custom of giving credence to an Englishman on his oath touching a theft, if supported by six Englishmen, while an Irishman, whose innocence is testified by thirty witnesses, has to make restitution, is abolished, and equal justice is ordered to be done between English and Irish.

2 Memoranda de Parliamento, 33 Edw. I. pp. 253-4.

3 Acts of Parliament of Scotland, i. 413; Neilson, Trial by Combat, 126.

CH. vii.] The Age of Bracton. 223

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 conquered 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 allied. Many a great baron can hardly have known to which nation he belonged. The concentrated might [p. 2021 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 Scottish version of Glanvill's book, we must not try to solve; but it seems clear enough from abundant evidence that, at the outbreak of the war of independence, the law of Scotland, or of southern Scotland, was closely akin to English law1. 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 progress of a common law. These seem to be the main causes which, when enforced, during the struggle for independence, by a loathing for all that was English, sever the stream of Scottish from that of English legal history. Romanism must come sooner or later; the later it comes the stronger it will be, for it will have gone half way to meet the medieval facts*. Uniformity, if it can not be evolved

1 In Acts of Parliament of Scotland, vol. i., Regiam Maie$tatem 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 which ascribes this book to Edward L will seem to an Englishman 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.

1 Schroder, D. B. G. 746. The Roman law that comes to England is the law of the early ' glossators.' The Roman law that wins victories in Scotland and Germany is the law of the later ' commentators' (Baldus, Bartolus and so forth) which has accommodated itself to practical needs.

224 The Age of Bracton. [BK. I.

from within, must be imported from without. Thus in the end Roman law is 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 w' 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 modern and enlightened as was that of the systems with which it could be profitably compared. 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 its matter. The great charter, the provisions of Merton and [p. Marlborough, the minor ordinances, these in 1272 constituted what we must here call a large body of 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.

Character- Uniformity is thus secured, and even a certain simplicity, English for some parts of our common law, notably the law of status, taw- must, if we have regard to continental systems, be called surprisingly 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 primo-genitary rules of inheritance are rapidly spreading downwards

CH. vii.] The Age of Bracton. 225

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 Eike of Repgau; at every moment he must be thinking of the formulas in the chancery's register. English law is modern 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 Justinian'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 [p.204] 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 mankind, 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 antique 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 L, 'the English Justinian,' we may turn to an examination of its rules and doctrines as we find them in the age of Glanvill and the age of Bracton.

p. M. i. 15








[p. 207] How best to arrange a body of medieval law for the use of An*'8P-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 modern law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distinctions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no existence. On the other hand, were we to aim at such an arrangement as a medieval lawyer would have adopted, the result would be to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words.

The arrangement of Bracton's treatise will for a moment Possible seem one that is familiar enough to every lawyer; it is the Srange- ° most famous of all schemes. Following the Institutes, he nT-riie treats of (1) Persons, (2) Things, (3) Actions. But if we may ™^al take the number of folios given to each of these topics as an of law. indication of its importance in his eyes, we find that the relation between them may be expressed by the figures 7 : 91 : 3561. Nor is this all. It is to his' law of actions' that we must often look for substantive English law. To a high degree in his treatment of 'persons,' to a less, but marked, degree in his treatment of ' things,' he is dependent on Azo and Roman Law. It is only as he approaches the law of

1 As to the arrangement of the treatise see Bracton and Azo, p. 14.

230 Tenure. [BK. n.

' actions' that we begin to know that he is giving us practicable [p. 208] English law and not speculative jurisprudence. 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; and such arrangement as the Leges Henrici have, puts jurisdiction and procedure in the forefront. That characteristic mark of ancient jurisprudence, 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 may be illustrated by reference to that division of law into 'public' and 'private* which seems eminently well suited to be among the first outlines 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 use of it1. 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 theory urged by a modern writer2, that 'public law' is but [p.209] a department of the ' law of persons,' however inapplicable to modern states, may sometimes be applied with advantage to the middle ages. Any such conception as that of ' the state'

1 Bract, f. 3 b: 'Est autem ius publicum quod ad statum reipublicae (at. cod. rei Romanae) special...ius autem privatum est quod ad singulorum pertinet utilitatem principaliter et secundario pertinet ad rempublicam.' On the general ground that a copyist is more likely to have discarded than to have reintroduced the allusion to Borne, rei Romanae seems the preferable reading; it is also the reading of the best MSS. See Bracton and Azo, p. 27. 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 prominent.

2 Austin, Jurisprudence, i. 69-71.

CH. L] Tenure. 231

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 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.'

Now albeit we can not adopt either of these two methods to Onr °wn the neglect of the other and must consider both medieval lawyers and modern 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 further progress in our study; if we begin elsewhere, we are likely to find that we have begun at 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 easy, for the broadest distinction between classes of men, the distinction between free men and men who are not free, is intricately connected with land tenure, in so much that the same word villenagium is currently used to [p. 210] denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law; and along with the law of jurisdiction we must examine ' the communities of the land.' Having dealt with these topics we shall, it is hoped, have said

232 Tenure. [BK. n.

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,' Ownership 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 modern 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 the whole of medieval life.—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 enure. formuia> which may be expressed thus:—Z tenet terrain illam

de......domino Rege. The king himself holds land which is in

every sense his own; no one else has any proprietary right in it; [p. 211] but if we leave out of account this royal demesne, then every acre of land is ' held of the king. The person whom we may 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

CH. I. § 1.] Tenure in General. 233

others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there stand other persons; Z holds immediately of Y, who holds of X, who holds

of V, who holds......of A, who holds of the king. Let us take

one real instance:—in Edward I.'s day Roger of St German holds land at Paxton in Huntingdonshire 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 England1. A feudal ladder with so many rungs as this has, is uncommon; but theoretically there is no limit to the possible number of rungs, and practically, as will be seen hereafter, men have enjoyed a large power, not merely of adding new rungs to the bottom of the ladder, but of inserting new rungs in the middle of it. The person who stands at the lower end of the scale, the person who seems most like an owner of the land, and who has a general right of doing what he pleases with it, is said to hold the land in demesne; Z tenet terrain in dominico, or in dominico 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 tamen 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 (in capite). Every person [p.212] who stands between the king and him who holds in demesne, every mesne lord or mesne, is both lord and tenant, lord as regards those who stand below him, tenant as regards those who stand above*.

1 Hot. Hnnd. ii. 673.

3 This statement will require some qualification hereafter when we speak of the unfree tenures.

* In later days the term ' tenure in capite' was sometimes used as though it were equivalent to 'tenure in capite of the crown' and even to 'tenure in capite of the crown by knight's service.' In the Baronia Anglicans, Madox has sufficiently proved that this use of the term was an innovation. See also Hargrave's notes to Co. Lit. 108a. In the thirteenth century the term 'in capite' is

234 Tenure. [BK. n.

Universa- Before attempting to analyze this notion of dependent and dependent derivative tenure, let us first observe how universally it has tenure. ^^ appjje(ji jf0t onjy nas 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 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 house in free alms, still the formula has been found equal [p. 213] 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.

Feudal The term feodum, which in Anglo-French is represented by

fe, fie, fee and in English by fee, is one of the words which came

merely equivalent to 'immediately,' 'sine medio'; thus even a burgage tenant may have ' tenants in capite' holding of him: Ann. Dunstap. p. 173. Again, in the time of Henry I. Boger holds of Nigel, Nigel of the Earl of Chester; Nigel consents that Boger shall hold of the Earl 'in capite, nt 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: 'Les fiefs sont tenus nu a nu [Lat. immediate] des seignurg quand il n'y a aulcnne personne entre eulx et leurs tenants'; Ancienne Coutume (de Gruchy) 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 maintained ; it was giving trouble in 1304; Y. B. 32-3 Edw. I., p. 39.

1 We use the phrase 'dependent and derivative tenure' instead of saying merely ' tenure,' for though English lawyers have been wont to speak as though tenure of land were 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 terrain, but tenere terrain de X.

CH. I. § 1.] Tenure in General. 235

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 heritability1. 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 behoof*. But nothing more is implied as to the terms of his holding, the relation between him and his lord. His duties to his lord may be onerous or nominal, noble or humble, military or agricultural, but if his rights are heritable, then he holds in fee and the land is feodum swum, at all events if his tenure has about it no taint of villeinage*. Thus we can not, as continental writers do, treat feudal law as 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 proprietary rights [p. 214] that men have in land. We can hardly translate into English the contrast which Germans draw between Lehnreckt and Landrecht. Our Landrecht is Lehnreckt; 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

1 There are two passages in the Leg. Henr. in which feodum seems to signify rather inherited than heritable rights:—70, § 21, the eldest son is to inherit the father's feodum, while the emptiones and acquisition's 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. See also Maitland, Domesday Book, 152.

2 Glanvill, ziii. 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 ita feodum. The contrast between fee and gage disappears when the gage takes the form of a conditional feoffment.

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.

236 Tenure. [BK. n.

common law of England. That extensive application of the feudal formula (Y 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 force1. If it has to describe the relation between the king and the palatine earl, the relation (slight enough in England) between 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 diverse 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 universal2.

Analysis of It is clear then that of dependent or of feudal tenure in tenure.6" 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 has rights against his tenant, the tenant rights against his [p. 215] 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,

1 Brunner, D. B. G., ii. 11: ' Wo jedes Grundeigentum sich in Lehn ver-wandelt, wird das Lehn, wie die Kntwicklung des englischen Bechtes zeigt, schliesslich zum Begriff des Grundeigentnms.'

2 It is believed that the forms feud and/e/ 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 feoda, salaries. The etymological problem presented by the English fee seems no easy one, because at the Conquest the would-be Latin feodum or feudum (the d in which has puzzled philologists and does not always appear in Domesday Book) is introduced among a people which already has feoh as a word for property in general and cattle in particular. See Oxf. Eng. Diet. There are valuable remarks on this word in Flach, Origines de 1'ancienne France, ii. 315.

3 After a straggle in cent. xii. with other forms, such as tenura, temiitura, the word tenementum has established itself in cent. xiii. 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.'

CH. I. § 1.]

Tenure in General.


the tenant on the lowest step of the feudal scale, obviously has 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 not adequately described his position by saying that he has a right to 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 land1. 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 jurisprudence, 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 often spoken of as though it were a person who could be bound by obligations and perform duties: hides and virgates must send men to the war, must reap and mow and do suit of court; ' these two half-hides ought to carry the king's writs whenever they come into the county1.' But [p. 216] the vast liberty that men have enjoyed of creating new tenures and sub-tenures gives us wonderful complications: the obligation 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.

To take a simple case:—The king has enfeoffed A to hold obligations by military service; A can now proceed to enfeoff B, (whether tenant and he can do so without the king's leave is a question which we tenement

1 Phrases showing that the lord is conceived as holding the land are quite common; see e.g. Bracton f. 432 b, ' Item cum petens totum petat in dominico, tenens respondere potest et cognoscere 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; Bracton f. 81, 'nisi ipse vel antecessores sol in seisina fnerint de tenements illo in dominico vel servitio'; f. 392,' ante-cessor obiit seisitus ut de feodo in dominico vel in servitio.'

1 Testa de Neville, 71. See Gierke, Genossenscbaftsrecht, ii. 92.

238 Tenure. [BK. n.

postpone) and may enfeoff B by some quite other service; B for example is to pay A 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 form- '

sec sen-ice, the 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 determine its incidence. Suppose that A has undertaken to discharge this burden, then if the king attacks the land in B'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 niedio), 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 the king's demands1. And then, if B enfeoffs C, the problem [p. 2173 will reappear in a more complicated shape; some new service will perhaps be created; for instance C, who is a parson, is to pray for the soul of jB'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 themselves, jB and 0 can settle this matter by the terms of their bargain, but without prejudice to the rights of A, and of the

1 The writ of mane is not in Glanvill, bat appears in very early Registers; Harv. L. B., iii. 113, 115. In Henry III.'s day it was in common use.

CH. L § 1.] Tenure in General. 239

king. It is no impossibility that Edward should hold in villeinage of Ralph, who holds in free socage of the Prior of Barnwell, who holds in frankalmoin of Earl Alan, who holds by knight's service of the king1. Just as at the present day one and the same acre of land may be leasehold, copyhold and freehold—for there is no land without 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*.

[p. 218] Little more could at this moment be said of tenure in ciassffica-general—an abstraction of a very high order. Efforts, however, tenures. had been made to classify the tenures, to bring the infinite modes of service under a few heads, and before the end of the

1 Y. B. 33-5 Edw. L, p. 377.

1 See Bracton's explanation of the term 'forinsec service,' f. 35-7. This term had been in common use even in Bichard's reign; see Fines, ed. Hunter, passim; and may be found in Domesday Book, i. 165 b. 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 forinsec service is almost the same as saying that his tenure is military, and therefore implies wardship and marriage; see Bracton's Note Book, pi. 33, 236, 288, 703, 795, 978, 1076, 1631; T. B. 20-21 Edw. I., p. 133. Hence the notion put forward by Hale and supported by Hargrove (Co. Lit. 69 b, 74 a, nates) that forinsec service is so called because it is done in foreign parts. But this can hardly be true; the military tenants were constantly asserting that into foreign parts they were not bound to go. Besides, services which are not military are occasionally called ' forinsec,' services due from socage tenements, e.g. suit of court, landgafol, churchscot; Beg. Malm., ii. 51, 'salvo forinseco servicio pertinente ad liberum socagium quantum ad nnam virgatam terrae'; Ibid. 52, ' salvo forinseco servicio pertinente ad unam virgatam terrae de libero socagio'; Ibid. 69, 'et pro chirchsote [sic] et omnibus aliis serviciis forinsecis.' And forinsec service is not necessarily due to the king; Whalley Coucher, i. 21: A's tenant B has enfeoffed C; A releases to C ' omne forense servicium quod ad me pertinef; the service due from B to A was forinsec as regards C. Thus the term is a relative one; what is ' intrinsec' between A and B is ' forinsec' as regards C. 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 legal development of a more concrete notion. In northern charters we sometimes read of the king's ' ntware' just where we should expect to read of ' forinsec service.' Perhaps at first' ontside 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:—'forinsecunt dici potest quia sit [corr. fit] et capitur foris sive extra servitium quod sit [corr. fit] domino capital!.' Observe that the tenant's ' dominus capitalis' is his immediate lord.

240 Tenure. [BK. n.

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 particular, 'fee farm' and 'bur-gage* 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 them1.

§ 2. Frankalmoin.

Frankai- At the beginning of the thirteenth century an ever-increasing

mom' quantit)T of land was held by ecclesiastics, regular and secular, in right of their churches 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 doctrine of later days2. We may take [p.219] the second characteristic first. At all events in later days', if land was given to a churchman 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

1 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 attention, but at a later stage of oar work.

2 Bat in 13 Edw. L (Fitz. Abr. Counterple de vouclter, 118) it is said that frankalmoin is the highest and moat certain of all services.

3 Litt. sec. 133-8.

4 See the writ Ceisavit de cantaria. Beg. Brev. Orig. 237 b, 238.

CH. I. § 2.] Frankalmoin. 241

terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee's prayers, then no fealty was due; and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor's soul that he had impliedly or expressly undertaken. Perhaps this distinction 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 great importance, because stipulations for definite spiritual services were rare when compared with gifts in frankalmoin1.

Here, as in France, the word elemosina became a technical Meaning

of' alms.'

word, but it was not such originally. At first it would express rather the motive of the gift than a mode of tenure that the [P. 220] gift creates. And so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by the king in elemosina, but the donee is to all appearance a layman; in one case he is blind, in another maimed; he holds by way of charity, and perhaps his tenure is precarious. 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 alms3.' Then, again, in some

1 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 like are not uncommon, and often they expressly say that the land is frankalmoin, e.g. Reg. St Osmund i. 234 (1220—a), a gift of land to the church of Sarum in pure and perpetual alms to find a taper to burn 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 ' tarn in reparanda ecclesia quam in maioribus necessariis ecclesiae,' Beg. St Osmund, i. 350.

3 D. B. i. 293: ' In W. tenet qnidam cecus nnam bovatam in elemosina de rege.' Ibid. iv. 466: 'Tennit Edritius mancus in elemosina de rege Edwardo.' In Dorsetshire, under the heading 'Terra Tainorum Regis' (i. 84), we find 'Hanc terrain dedit Begina Dodoni in elemosina.' In Devonshire, under the like heading (118), we find 'Alunard Mert tenet dim. virg....Begina 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 jEsgar; they could not sell' qnia semper iacuerunt in elemosina.' This would seem to mean that they held precariously. See the curious entry, ii. 5 b, which

t. M. I. 16

242 Tenure. [BK. n.

paxts 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 alms1. 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 churches2. 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 burdens*. In the twelfth century, the century of new monastic orders, of lavish endowments, [p. 221} of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning4.

service"1 ^ne no^on ^nafc 'ne tenant in frankalmoin holds his land

by a service done to his lord seems to grow more definite in 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

tells how Harold gave a hide to a certain priest of his, ' set hnndret nescit si dedit liberae [«tc] Tel in elemosina'; seemingly the hundred did not know whether the priest's tenure was free or precarious.

1 D. B. ii. 24 b; ii. 189 h: the parish church holds sixty acres of free land 'elemosina plnrimorum.' See the survey of Suffolk, where the parish church generally holds some acres ' of free land' in elemosina.

2 D. B. i. 25 b: 'Clepinges tenet Abbatia de Almanesches de Comite (Rogerio) in defendit pro si. hidis....In eodem manerio tenet 8. Marunus de Sais de Comite in elemosina xi. hidas.' Ibid. i. 58: 'Episcopus Dunelmensis tenet de Bege Waltham in elemosina.' Ibid. i. 166 b: ' Ecclesia de Cirecestre tenet de Bege dnas hidas in elemosina et de Bege E. tennit quietas ab omni consuetndine.'

3 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 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.

4 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 modern notions John's could not be.

CH, I. § 2.]



thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion was very old1. In charters of the twelfth century 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 required, and occasionally they are definitely treated as services done in return for the land4: thus, for example, the donor obliges himself to warrant the gift' in consideration of the said service of prayers8.' Not unfrequently, especially in the older charters, [p.222] the donor along with the land gives his body for burial4; sometimes he stipulates that, should he ever retire from the world, he shall be admitted to the favoured monastery; sometimes 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'.

We have spoken as though gifts in frankalmoin were made ^s to to men; but, according to the usual tenour of their terms, they the saints. were made to God. As Bracton says, they were made prima et principaliter to God, and only secundario to the canons or monks or parsons'. A gift, for example, to Ramsey Abbey would take the form of a gift' to God and St Benet of Ramsey

1 Already Bede, Hist. Eccl. iii. 24, tells how Oswy gave land to the church in order that prayers might be offered for the peaoe of his folk. The land, instead of providing for a militia Urrettrit, is devoted to a militia caelestit.

* Cart. Gloac. i. 197: 'habendum in liberam elemosinam...8ine aliquo retinemento ad opus meum vel aliquorum herednm meorum nisi tantnmmodo orationes spirituales perpetuas.' Ibid. i. 199, 289, 335, ii. 10. Such phrases are common in the WhaUey.Coucher Book.

* Cart. Glouc. i. 307: 'Nos vero...praedictam terrain...per praedictum servi-oinm orationum warantizabimus." The term ' consideration' is of coarse rather too technical, but still the prayers seem regarded as having a certain juristic value.

4 Litigations over the right to bury benefactors may be fonnd, e.g. Begister 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 straggles for the bodies of dying men, e.g. between the monks of Abingdon and the canons of St Frideswide, Hist. Abingd. ii. 175. See also a charter of John de Lacy in the Whalley Conoher, i. 33: 'Enow 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.

< Bracton, f. 12.


244 Tenure. [BK. n.

and the Abbot Walter and the monks of St Benet,' or simply ' to God and the church of St Benet of Ramsey,' or yet more briefly' to God and St Benet1.' 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 church1. 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 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 been great*. We are not entitled to treat these phrases which [p-' seen! to make God a landowner as of no legal value. Bracton more than once founds arguments upon them6, and they suggest that land given in frankalmoin is outside the sphere of merely human justice.

Free alms In later days the feature of tenure in frankalmoin which sec'service. attracts the notice of lawyers is a merely negative feature, namely, the absence of any service that can be enforced by the secular courts. But some distinctions must be drawn. The king might give land to a religious house' in free, pure, and perpetual 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 the quantity of land held in chief of the crown by frankalmoin was never very large. It will 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 greater and older abbeys were held by knight's service; the bishop, the abbot, held a barony. Beside this, we constantly find religious houses

1 Cart. Bamsey, i. 159,160, 255, 256.

" See e.g. Cart. Olouo. L 164, 205; ii. 74, 86, 97.

* See e.g. Hist. Abingd. ii. 55; Whitby Cartulary, i. 200; Whalley Coucher, i. 17,113.

* See e.g. Bull of 1188, Hist. Evesham, 173; Bull of 1140, Cart. Bamsey, ii 155; Boll of 1146, Hist. Abingd. ii. 191.

> Bracton, f. 12, 286 b.


CH. I. § 2.J Frankalmoin. 245

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 often proceeded 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 donee1. 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' seems to have implied that the tenant was to owe no secular service to his lord; but they did not necessa-[p. 224] rily imply that, as between lord 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 stipulated that the tenant is to do the forinsec service2, sometimes the lord burdens himself with this8, often nothing is said, and apparently in such case the service falls on the lord.

Another rule of interpretation appears, though somewhat Pure alms. 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 turn on the use of the word ' pure4.' 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 core of tenure in frankalmoin; and if we find, as well we may, that a donor sometimes stipulates for

1 Bracton, f. 27 b. Cf. Somma, p. 99.

* Fines, ed. Hunter, i. 200 (3 John): 'Ala dedit et concessit in puram et per-petnam elemosinam Deo et ecclesiae S. Marie de B...totam partem suam...ita quod praedictns prior et snccessores sui facient inde forinsecum servicium.' Cart. Glouc. i. 167: gift in frankalmoin, 'salvo tamen regali servioio.' Ibid. 187: gift in frankalmoin saving the landgafol due to the king. Ibid. 289: gift in free, pore and perpetual alms subject to a rent of pepper and to royal service.

' Cart. Glonc. ii. 17, 30, 98.

4 Bracton, f. 27 b; Note Book, pi. 21.

246 Tenure. [BK.. n.

secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened1. Free alms The key to the problem is given by the Constitutions of siastical Clarendon (1164). Freedom from secular jurisdiction rather t?on8 '° *nan freedom from secular service has been the focus of frankal-moin. 'If,' says the famous document, 'a dispute shall arise between a clerk and a layman, or between a layman and a clerk, concerning any tenement which the clerk asserts to be eletno-sina and the layman asserts to be lay fee, it shall be determined by a recognition of twelve lawful men and the judgment of the chief justiciar whether (utrum) the tenement belongs to elemo- [p-225] sina or belongs to lay fee. And if it be found to belong 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 his seisin until it has been deraigned by the plea8.' 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 there is dispute 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 process; 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

1 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, 219. Newminster Cart. p. 73: gift by Newmiuster Abbey to Hexham Priory in free, pure, and perpetual alms at a substantial rent. Bracton, {. 48, holds that in these cases the services must be done, but speaks with some doubt.

2 Const. Clarend. c. 9. In the Gesta Abbatum, i. 114, the 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. 145.

CH. i. § 2.] Frankcdmoin. 247

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'.

[p. 226] They conceded, however, more than the church could per- The Assize inanently keep. If as regards criminous clerks the Constitutions of Clarendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the low-watermark. In Normandy the procedure instituted by Henry, the Breve de Feodo et Elemosina, which was the counterpart, and perhaps the model, of our own Assisa Utrum, seems to have maintained its preliminary character long after Henry's son had forfeited the duchy: that is to say, there were cases in which it was a mere prelude to litigation in the spiritual forum!. In England it gradually and silently changed its whole nature; the Assisa Utrum 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

1 See the remarkable series of papal rescripts in the Bievaulx Cartulary, 189-197; see also c. 7, X. 4, 17, where the pope admits that be has gone too far in ordering his delegates to give possession in a dispute between laymen, which came into the ecclesiastical courts in consequence of a question having been raised about bastardy. See also in the Malmesbury Register, ii. 7, proceedings under letters of Innocent III. for the recovery from a layman of land improvident!? alienated by an abbot. In the Gesta Abbatnm, i. 159—162, there is a detailed account of litigation which took place early in Henry EL'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.

9 Somma, p. 295; Ancienne contnme, p. 288; Brunner, Entstehung der Scb.wnrgericb.te, 324-6; Brnnner, Pol. Sci. Quarterly, xi. 538. Apparently, the Norman assize had from the first served as a petitory action; but if the recognitors could give no verdict, then the cause went to the ecclesiastical court.

3 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. T. B. 14-15 Edw. III. (ed. Pike), p. 47; and see Bracton, f. 287, where the technical distinction between an Attila Utrum and a Jurata Utrum is explained.



[BK. ii.

Defeat of the ecclesiastical claims.

their churches: it became 'the parson's writ of right1.' Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat2.

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 to lands which were withholden from him, he might use the [p. 227] 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 is 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 predecessors 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 Dale8.' True, that if the parson is ejected from possession, lie may have an assize of novel disseisin, for he himself has been seised of a free tenement; but a proprietary (as opposed to 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

1 Britton, ii. 207.

1 According to Glanvill (xii. 25, xiii. 23, 24) the courts Christian are competent 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 almoin, the judgment is that the parties do go to court Christian and implead each other there; Placit. Abbrev. p. 54 (Oxon.).

1 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 Rochdale,' and contracts to warrant the land ' to God and the church of Rochdale,' saying nothing of the parson; Whalley Coucher, i. 162.

CH. I. § 2.] Frankalmoin. 249

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 Utrum is his only remedy of a proprietary kind1.

In another context it might be interesting to consider the ^£?srson meaning of this curious argument; it belongs to the nascent land. law about 'corporations aggregate' and 'corporations sole.' The members of a religious house can already be regarded as constituting an artificial person; the bishop also is regarded as bearing the persona of his predecessors; the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time. But to the parish parson that idea has not yet been applied. The theory is that the [P. 228] parish church itself is the landowner and that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being8. It has been difficult to find a 'subject' who will bear the ownership of the lands appropriated to parish churches, for according to a view which is but slowly being discarded by the laity, the landowner who builds a church owns that church and any land that he may have devoted to the use of its parson*. However, our present point must be that legal argument takes this form— (1) 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 beneficium, introduced in favour of parsons4. 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 procedure that was to be employed as

1 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; Note Book, pi. 1117.

* Bracton, f. 287 b. The parson has not only the assize of novel disseisin, but he may have a writ of entry founded on the seisin of his predecessor. This 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 ecclesiastical court was the tribunal competent to decide on the title to land held in frankalmoin.

* Stutz, Geschichte des kirchlichen Benefizialwesens; Stutz, Die Eigenkirche. 4 Bracton, f. 286 b.

250 Tenure. [BK. n.

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, because the layman had other remedies; Bracton was for retracing this step, because trial by battle and the troublesome grand assize might thus be avoided1. 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 or of another church2. 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 contain a plain admission that if both parties agree that the land is elemosina, any dispute between them is no concern of the lay courts.

Meaning of We have been speaking of the formal side of a legal change, al moin but must not allow this to conceal the grave importance of the thirteenth Matters that were at stake. The argument that none but century, parochial rectors have need of the Utrum, and the conversion of [p. 229] the Utrum from a preliminary procedure settling the competence of courts, into a proprietary action deciding, and deciding finally, a question of title to land, involve 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 touching ' lay fee' (laicum feodum) 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 spiritual 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 consecrated soil, the sites of churches and monasteries and their churchyards, to

1 Bracton, f. 285 b; Fleta, p. 332; Britton, ii. 207.

- Stat 13 Ed. I., c. 24.

3 Bracton, f. 407; Note Book, pi. 547, 1143.

CH. I. § 2.] Frankalmoin. 251

which, according to Bracton, may be added lands given to churches at the time of their dedication1. The royal court is zealous in maintaining its jurisdiction; the plea rolls are covered with prohibitions directed against ecclesiastical judges2; 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 writ8. 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 glance at [p. 230] 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 church4.' 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 and courts of the church5.

1 Bracton, f. 407. Such lands constitute the church's dos or dower. See also t. 207 b.

2 See Note Book passim. The writ of prohibition is found in Glanvill, zii. 21, 22. It is found in the earliest Chancery Registers. Bracton discusses its scope at great length, f. 402 ff.

3 In the twelfth century the donor sometimes expressly bitids himself and his heirs to submit to the church courts in case he or they go against the gift; see e.g. Eievanlx Cartulary, 33, 37, 39, 69, 159, 166. So in the New-minster Cartulary, 89, a man covenants to levy a fine and submits to the jurisdiction of the archdeacon of Northumberland in case he fails to perform his covenant. For a similar obligation undertaken by a married woman, see Cart. Glouc. i. 304. As to such attempts to renounce the right to a prohibition, see Note Book, pi. 678.

4 Ann. Burton, p. 427. See also the protest of the bishops in 1257, Mat. Par. Chron. Maj. vi. 361.

s Viollet, Histoire du droit civil, p. 702: 'la franche aumSne...un franc alien ...echappant a toute juridiction civile.'

252 Tenure. [BK. n.

§ 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 modern books military tenure has a definiteness and a stability which it never had elsewhere. An army is settled on the land, is rooted in the land. The grades in ' the service' correspond to, and indeed 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, squadrons, 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 and 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 an end. Before there is much law about military tenure it has [p.23i] 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 very different from the military tenure of Edward I.'s; but this again was very different from the military tenure of Henry I.'s or even of Henry II.'s reign.

Growth Soon after the Conquest a process begins whereby the duty

of* military of service in the army becomes rooted in the tenure of land.

tenure. rp^ goeg on for & century j Dut 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 in 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;

CH. i. § 3.] Knight's Service. 253

that there is another century (1166—1266) during which these tenures still supply an army, though chiefly by supplying its pay; and that when Edward I. is on the throne the military organization which we call feudal has already broken down and will no longer provide 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 and 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 L, 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 preliminary 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 the method of [p. 232] 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 research1.

1 There is only one half-century daring which scutages are frequently imposed,- namely that which lies between 1190 and 1240. The early history of scutage is now in the crucible. New materials have been rendered accessible by the publication of the Bed Book of the Exchequer and some of the Pipe Bolls of Henry H.'s day. Two important tracts have come to our hands at the last moment, viz. (1) J. F. Baldwin, Scutage and Knight Service, Chicago, University Press, 1897; and (2) 3. H. Bound, The Bed Book of the Exchequer (privately printed), 1898. Mr Bound makes it fairly certain that our statement (infra, p. 267) as to the existence of scutage before the days of Henry H. is not strong enough, and he leaves us doubting whether at this point Henry did much that was new. Mr Baldwin has thrown light on many details. While agreeing with us in holding that in the last days of scutage the tenant in chief can not escape from the duty of military service at the cost of paying scutage, Mr Baldwin seems inclined to hold that in the earlier time the scutage was treated as a full equivalent of the service. His researches seem to show that Henry II.'s endeavour to charge the tenants in chief with the number of fees that they had created if it exceeded their old servitium debitum (infra, p. 266) was not permanently successful. Not the least interesting result of Mr Baldwin's essay is the proof that, as compared with other sources of revenue (dona, auxilia, tallagia), the importance of the scutages may easily be over-rated.



[BK. ii.

Units of military service.

The forty days.

By far the greater part of England is held of the king by knight's service (per servitium militare): 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 militia) 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 crisis of constitutional history has this for its cause. It is a question, we may say, which never receives any legal answer *.

Even the limit of forty days seems to have existed rather in [p. 233] theory than in practice, and its theoretic existence can hardly be proved for England out of any authoritative document1. 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 Karlovingian emperors. From the Touraine 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

1 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 the realm; Jocelin of Brakelond (Camd. Soc.), 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 bow the knights of Holderness refused to follow Edward into Scotland, Chron, de Melsa, ii. 107.

1 What Littleton, sec. 95, has to say on this matter is little better than traditional antiquarianism.

* Viollet, Etablissements, ii. 95-6; iii. 31, 352-3. In Germany also the role 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; Schr5der, D. E. O., 502. As to Normandy, see Somma, p. 69; Ancienne Coutume, p. 66, c. 25.

CH. I. § 3.] Knight's Service. 255

feeble; when in 1226 the Count of Champagne appealed to it and threatened to quit the siege of Avignon, Louis Vill, swore that if he did so his lands should be ravaged1. 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 least2. 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 [p. 234] whether he is not bound to serve for a longer time at his lord's cost8. 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 £1004. 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 wagesB. No serious war could be carried on by a force which would dissipate itself at the end of forty days, and it seems probable that the king could and did demand longer service, and was within his right in so doing, if he tendered wages, or if, as was sometimes the case, he called out but a fractional part of the feudal force'. We have to remember that the old duty of every man to bear arms, at least in defensive warfare, was

i Mat. Par. Chron. Maj. iii. 116.

'* Lords' Report on the Dignity of a Peer, App. i. p. 1. The summonses of the feudal array are collected in this Appendix.

Testa de Neville, e.g. 146-7.

4 Chron. Jocelini de Brakelond (Camden Soo.), 63.

Gesta Abbatum, i. 435.

In 1212 John gives orders for the payment at his cost of the knights in bis service, from the time when the period shall have elapsed during which they are bound to serve at their own cost; Bot. Cl. i. 117.

256 Tenure. [BK. II.

never—not even in France—completely merged in, or obliterated by, the feudal obligation1. Just when there seems a chance that this obligation may become strictly denned 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, and to issue commissions of array.

Kmght's gut tnese 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 (feodum militia); another tract is conceived as made up of five or ten knight's [p. 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 militis)*. 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 = units miles, two serjeants will be accepted in lieu of one knight*; but a fortieth part of the service of one knight would be unintelligible, 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 fee4; 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 scutage.

siz^o?8 To represent to ourselves the meaning and effect of this

knight's apportionment is no easy matter. In the first place, we have

1 As to France, see Viollet, fetablissements, ii. 93; Hi. 350. As to the 'retrobanrms Normanniae,' see a charter granted by John to the Abp. of Rouen, Bot. Cart. 69; also Somma, p. 69; Ancienne Coutume, p. 66.

2 The Norman term feodum loricae, fief de haubert, occurs but rarely in England, still it may be found ; the Abbot of Tavistock holds fifteen and a half fees en fe de haubergh; Rot. Hand. i. 81. Cf. Coronation Charter of Hen. L c. 11: ' Milites qni per loricaa terras suas deservitmt.' It is also common to speak of the knight's fee as a scutum, particularly in reference to taxation.

s See the muster rolls of Edw. I.; Parl. Writs, i. 197, 228.

4 Liber Bubeus, i. 341. 5 Hunter, Fines, i. 15.

CH. I. § 3.] Knight's Service. 257

to observe that the term ' knight's fee' does not imply any particular acreage of land. Some fees are much larger than others. This truth has long been acknowledged and is patent1. We may indeed see in some districts, for example among the knights of Glastonbury, many fees of five hides apiece'; but in a single 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 carucates4. The fees held of the abbot of Peterborough were extremely small; in some cases [p. 236] he seems to have got a full knight's service from a single hide or even less5; on the other 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 fee7. 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 fees8. Perhaps a vague theory pointed to twenty librates of land as the proper provision for a knight; but even this is hardly proved*.

Another difficulty arises when we ask the question, what ?atnre °* was the effect of this apportionment, and in particular what tfonment. persons did it bind ? Modern lawyers will be familiar with the notion that an apportionment of a burden on land may be effectual among certain persons, ineffectual as regards others. Let us suppose that A owns land which is subject to a rent-charge of £100 in favour of M and a land-tax of £10 per annum; he sells certain acres to X; 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

1 Co. Lit. 69a, 69 b (Kale's note); Stubbs, Const. Hist. i. 287; Bound, Feodal England, 231 ff., 293 fl.; Hall, Liber Habeas, vol. ii. p. clxiii. 9 Glastonbury Inquests (Boxbnrgh Club), paseim.

Testa de Neville, 63-4.

Liber Enbeus, i. 385, 431.

Chron. Petroburg. 169.

Kirkby's Inquest for Yorkshire (Sartees Soc.) 196-7.

Testa de Neville, 408. 8 Madox, Exch. i. 649.

Stnbbs, Const. Hist. i. 288, and Bound, Feudal England, 295, seem inclined to accept this theory. See also Hall, Lib. Bub. vol. ii. p. clxiv.

P. M. I. 17

258 Tenure. [BK. n.

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 not absolute.

The appor- We may begin by considering the relation between the between* king and his tenants in chief. We have good reason to believe and'Ss? *^at *^e Conqueror when he enfeoffed his followers with tracts tenant in of forfeited land defined the number of knights with which they [p-237] were to supply him, and also that he defined the number of knights that were to be found by the cathedral and monastic churches whose land 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 was 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 decided, for we know little of the legal constitution of Harold's army. The result was capricious. The relative wealth of the abbeys of Peterborough, St Edmund's, 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 Bang Offa, at which modern diplomatists have looked askance1. But, at any rate as regards the forfeited lands of the

1 Mat. Par. Chron. Maj. vi. 1; Baddan and Stubbs, Councils, iii. 470.

CH. I. § 3.] Knight's Service. 259

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 32,000; we may doubt whether it exceeded 5,000. The [p. 238] 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 arguing that William introduced a kind of tenure that was very new in England; 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 Conqueror1.

At any rate in Henry II.'s day the allotment of military Houours service upon the lands of the tenants in chief may be regarded baronies. 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 important in our constitutional history; a separation between the greater and the lesser tenants must be effected in course of time, and the king has thus a power of defining what will hereafter be the 'estate' of the baronage. In Henry IL's day the king had many tenants each of whom held of him but one knight's fee, or but two or three knights' feea On the other hand, there were nobles each of whom had many knights' fees: a few had fifty and upwards. Now to describe the wide lands held of the king by one of his mightier tenants, the terms honour and

1 This we regard as having been proved by Mr Bound's convincing papers in E. H. B. vols. vi. vii., which are now reprinted in his Feudal England. 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 permanent As to the old English army, see Maitland, Domesday Book, 156 ff. 295, 308.


260 Tenure. [BK. n.

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 of these baronies were very large1. To [p. 239] 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, and therefore 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 constitution 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 is some castle or some manor which is accounted its ' head.' Thebarony We find it said of a man not only that he holds a barony as a (tenet baroniam), but also that he holds by barony (tenet per toteht*? baroniam). This phrase will deserve discussion hereafter; for fees- the present it is only necessary to notice that every military tenant 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

1 The use of the term honour 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. 55, § 1, where honour is contrasted with manor.

3 Selden, Titles of Honour, pt. n., cap. v. sec. 26.

* The oldest versions of the Charter make the relief for the barony, cot a hundred marks, but a hundred pounds, go that were the argument Bound, the barony should contain twenty fees.

CH. i. § 3.] Knight's Service. 261

knights, making each of them liable to serve in the army; he may enfeoff more, giving each feoffee but a fractional part of a fee, that is to say, making him answerable for but a fractional part of one knight's service; he may enfeoff fewer, making each of them answerable for the service of several knights; he may retain much land in his own hand, and look to hiring (p. 240] knights when they are wanted. But, as between the king and himself, he has fifty knights' fees; he is answerable, and the land that he holds is answerable, for the production of fifty men. Every acre in the honour of Gloucester was liable to the king for the service of some two hundred knights and more. If the Earl of Gloucester makes default in providing the due number of knights, the king may distrain throughout the honour, or seize the honour into his hands. The exact nature of the power which a lord had of exacting service due to him from a tenement need not be here considered; but the main principle, which runs through the whole law on this subject, is that the service due from the tenant is due also from the tenement, and can be enforced against the tenement into whosesoever hands it may come, regardless of any arrangement that the tenant may have made with his sub-tenants.

This may be illustrated by the case of lands held in frank- Belativity almoin of a mesne lord, who himself holds by military service, knight's In this case something like an exception was occasionally ad- ee' mitted. 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 leave that land free from distress, provided that there be other land whence he can get his service1. Thus, let us say that a baron holds twenty knights' fees, and has twenty knights each enfeoffed of a single fee; the boundaries between these fees in no way concern the king; the whole tract of land must answer for twenty knights. An early example of this may be given:—at some time before 1115

1 Madox, Exchequer, i. 670-1, where other cases of Henry III.'s reign are given. John had observed this rule: Rot. Fat. 52, writ in favour of the Abbot of Stanlaw.

262 Tenure. [BK. n.

the Bishop of Hereford gave Little Hereford and Ulliugswick to Walter of Gloucester for the service of two knights; Walter gave Ullingswick as a marriage portion for his daughter Maud free from all knight's service, and thus, as between all persons claiming under him, the whole service of two knights was thrown on to Little Hereford. Thus really ' a knight's fee' is a relative Q\2ii] term; what is two knights' fees as between G and B, is but part of two as between B and A \ In the time of Henry II. when the 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 demesne2. 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 Eamsey held his broad lands by the service of only four knights, and we may therefore say that he had four knights' fees. But those 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 go to the war, and the others contributed to defray the expense 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.

Duty of The military tenant in chief of the crown was as a general

tary tenant rule bound to go to the war in person. If he held by the service in chief. Qf g^y knjghts, he was bound to appear in person with forty-nine. If he was too ill or too old to fight, he had to send not only a substitute but also an excuse4. Women might send

1 Bound, Ancient Charters, p. 19. In 1237, jurors are asked by what services Agnes de Wahnll holds a number of manors: 'Servicinm praedictorum maneri-orum nescinnt separare, quia tola baronia de Wahulla respondet integre dora. Eegi pro xxx. militibus': Note Book, pi. 1182.

2 Liber Rubens, passim, e.g. p. 368: 'Carta 8. de Scaliers...Haeo eat gamma; x. milites habeo feffatos et servitium v. militnm remanet super dominium meum.'

3 Select Pleas in Manorial Courts, pp. 48-51; Monast. u. 578. But see Cart. Bams. iii. 48, 218, and Bound, Feudal England, 298. Apparently the land had once been cut up into fees, and the arrangement under which it provided only four knights is not aboriginal.

4 See the Muster Rolls of 1277 and 1282 in Parl Writs, vol. i., e.g. p. 202:

CH. I. § 3.] Knight's Service. 263

substitutes and so might acclesiastics1. The monks of St {p. 242] Edmunds thought it a dangerous precedent when in 1193 Abbot Samson in person led his knights to the siege of Windsor2. 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.

We must first examine the position of a tenant who holds PP?!*"B1 by knight's service of a mesne lord, and we will begin with a military simple case. One 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'a tenement, being part of A's 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'8. On the other hand, B has undertaken to do for A the service of one knight. The nature of this obligation demands a careful statement:—B is bound to A to do for A a certain quantum 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'a tenement; but between B and the king there is no personal obligation4. The king can not by reason of tenure call upon B to fight; if somehow or other A provides his twenty knights, it is not for the king to complain that B is not among them'. None the less, the service that B is bound to do, is service in the king's army. Here we come upon a

'Robertas de Markham infirmns, at dicitur, offert servicium dimidii feodi militia in T. faciendum per W. de L. semen tern.'

1 This is often shown by the form of the summons; the lay man is told to come with hie service; women and ecclesiastics are bidden to send their service.

1 Joceliu of Brakelond (Camd. Soc.) 40.

' See above, p. 238.

4 Thus, according to William Bufus, the knights of the archbishop of Canterbury appear in a Welsh war without proper armour; Bnfus makes this the ground of a charge against Anselm. Freeman, Will. Bnf. i. 574, argues that even if the charge be true, it is not well founded in law; but we can not agree to this. 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 A; see e.g. Hot. Cl. i. 117 (for Balph 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.

264 Tenure. [BK. n.

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 otherwise; we may be fairly certain that in this respect the law was no adequate expression of the current morality; still [p. 248] we can not say that the law of England ever demanded private warfare1. 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 i1> sanctioned was one that bound the man to the lord, and in a certain sense bound him to fight for his lord. 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 servitium. 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-one 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, 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 Rouen shillings from every fee; but all the hundred and nineteen knights were bound to serve the bishop with arms and horses*. Knight's As a matter of fact, however, we sometimes find, even in toTiord"6 England, that knight's service is due, at least that what is called who owes knight service is due, to a lord who owes no knight's servico


1 We shall discuss this matter more folly in connexion with homage. * Infeudacionet militant in Bed Book of the Exchequer, ii. 624 ff.; Bouquet xxiii. 698.

CH. I. § 3.]

Knight's Service.


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 [P. 244] 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 tenants1. 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 profitable 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 forty*. The view taken by the knights was that the abbot was entitled to the service of forty knights and no more; 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 £123. Bracton says distinctly that the tenant in socage can create a military sub-tenure. This, however, seems to mean that a feoffor may, if he chooses, stipulate for the payment of scutage, even though the tenement

1 Chron, de Melsa, ii. 210, 223-3.

1 Liber Habeas, i. 394. Bat in Henry II.'s day the view taken at the Exchequer was that the abbot owed aid for fifty-two fees. Madoz, Ezch. 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.'

3 Jocelin of Brakelond (Camd. Soc.), 20, 48. See also Feet of Fines 7*8 Eic. I. (Pipe Boll Soc.), p. 53 ft., where are printed the documents which record the abbot's victory.

266 Tenure. [BK. n.

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 serve to give the [p. lord the profitable rights of wardship and marriage1. 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 himself and B, so that B will hold of X and X of 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^j 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 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 lord*. Scutage. The practice of taking scutages must have introduced into 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 difficulties. Before approaching these we will once more call to

1 Bracton, f. 86. * Fines (ed. Hunter), u. 51.

> Bound, Feudal England, 2J2 ff.

CH. I. § 3.] Knight's Service. 267

mind the fact that scutage is an impost of an occasional kind, that there never were more than forty scutages or thereabouts, [p. 246] We are wont to think of scutage as of a tax introduced by Nature of


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 system1. 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 documents of payments for the provision of knights* and of an auxilium exercitus, the aid for a military expedition'. In Normandy the equivalent for our scutage is generally known as the auxilmm exercitus*. In England the two terms seem in course of time to have acquired different meanings; the lord exacted a scutage from his military, his nominally military tenants, while he took an 'army aid' from such of his tenants as were not military even in name5. 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. At this point we must face some difficult questions. between

[p.247] In what, if any, sense is it true that the military service of ^a'™/

tenant in chief. 1 Round, Feudal England, 268 ff.

* Charter of Abbot Faritius, Hist. Abingd. ii. 135.

* Bamsey Cart. i. 147; see also Henry II.'a Canterbury charter, Monast. i. 105.

4 Somma, p. 70; Ancienne coutume, c. 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; Tres ancien coutumier, p. 39.

1 See Hot. Cl. i. 570-1. Of these aids we shall speak in another section.

268 Tenure. [BK. n.

the tenants in chief was commuted into scutage ? The king's ban goes forth summoning the host to a campaign. It says no word of scutage. Can the baron who owes twenty 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 enfeoffed'—can the baron say this ? Even if he can, we must 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 IIL's day and Edward L's the tenant in chief who does not obey the summons must pay far more than the scutage; he must 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 Westminster for his 15 fees, not 45 marks, but 100 marks1. In Edward L'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 as £20 on the fee when the scutage is [p. 248] 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 sad loser. Perhaps it is not absolutely impossible that Henry II. when he took two marks by way of scutage

1 Madoz, Exchequer, i. 660.

8 See the writ in Lords' Report, iii. 165.

8 Gesta Abbatum, ii. 94.

CH. I.


Knight's Service.


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 day1. But while the rate of scutage never exceeded £2 on the fee, the price of knights seems to have risen very rapidly as the standard of military equipment was raised and the value of money fell. In 1198 the abbot of St Edmunds hired knights 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 value of his military service.

Thus, so soon as our records become abundant, it seems plain that the tenant in chief has no option between providing his proper contingent of armed men and paying a scutage. The only 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. Therefore 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-[p.249] tenants by lords who have done their service or paid their fines. But this is not so.

We must speak with great diffidence about this matter, for 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 'tenant in demesne'

1 Bound, Feudal England, 271.

* Jocelin (Camd. Soc.), 63.

* Mat. Par. Chron. Maj. vi. 374, 438.

4 Select Pleas in Manorial Courts (Selden Soc.), 60-2.

The tenant in chief's service cannot be discharged by scutage.

The scutage of undertenants.

270 Tenure [BK. IL

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 military tenants. Theoretically he is not entitled to be paid for the same thing twice over. If a baron has either produced the requisite number of knights or compounded for his breach of contract, it is he and not the king who ought to receive scutage; in the one case he ought to get a scutage from any military tenants of his who have disobeyed his call to arms, in the other all his military tenants may 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 paid his fine, will have 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 those 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 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, assuming to act on behalf of the whole community, [p.asoj will on occasion grant to the king a scutage in respect of some military expedition that has taken place, and the meaning of this, at least in some instances, seems to be that, in response to the king's 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 coffers1. A national tax is imposed which the undertenants

1 See in particular the writ of 27 Hen. III. in Madox, Exchequer, i. 681; also Hall, Liber Bnbeus, it. p. clx.

CH. I. § 3.] Knight's Service. 271

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 chiefs duty of providing an armed force is not commuted into a duty of paying scutage. Indeed the demand conceded by the Charter of 1215, namely, that no scutage be imposed without the common counsel of the realm, would be barely intelligible, if John had merely been giving his tenants in chief an option between furnishing the due tale of warriors and paying two marks for every fee1.

We must now turn to a simple case and ask a simple ques- The tion. What was the duty of a man who held by knight's service sub-of a mesne lord ? We will suppose him to hold a single knight'stenan "' 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 representatives. Failure to perform this duty would be punished by a forfeiture 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 it4. It would further seem that many

1 Robert of Torigny (ed. Hewlett), p. 202, in the classical passage which describes the scutage of 1199 says that the king ' nolens vexare agraiios milites, nee bnrgensimn neo msticorum mnltitndinem' took a snm of money from each knight's fee, and, this done, ' capitales barones saos cam paucis secum duxit, (olidarios vero milites innnmeros.' The king does not give his capitales baronet »n 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 ayrarii, burgeiwet, nutici), •nd instead he takes a scutage. As Henry HI. was bound by charter not to collect scutage, except in accordance with the practice of Henry II., we might seem entitled to draw inferences from the grandson's days to the grandfather's. Bat more light is needed at this point.

1 To the contrary Littleton, sec. 96, relying on T. 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.

1 Hist. Abingd. ii 128 (temp. Hen. I.): an Abingdon knight fails to do service; 'nnde cum lege patriae decretum processisset ipsnm exsortem terrae merito debere fieri, etc.'

* Already in 1198 the knights of St Edmunds profess themselves willing to pay scutage, but they will not serve in Normandy; Jocelin of Brakelond, 63.

272 Tenure. [BK. n.

of them made good this assertion by steady perseverance. The [p. 251] 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, and 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 a mesne lord, becomes first in fact, and then in law, ' tenure by escuage1.

Tenure by The stages of this process we can not trace distinctly, but escuage. .^ ^^ 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 been hastened by the [p. 25-2]

Hear a groan from the Abbey of Evesham:—'Hie notantur milites et liberi tenentes de Abbatia de Evesham, multi initiate fefati, pauci yero inste. Isti nullum servitium faciunt ecclesiae nisi servitium Regis et hoc tepide.' (Quoted by Wrottesley, Burton Cartulary, p. 2.)

1 In Normandy by the middle of the thirteenth century the knights' fees had become divisible into two classes; ' Qnaedam feoda lorioae servitium exercitua debent dominia quod debet fieri Principi: quaedam vero anzilinm exercitus": Somma, p. 126; see also p. 70. It may be suspected that this really represents the state of things that existed in England under Henry HI.; some of the nominally military tenants had at least de facto established a right to do no more than pay scutage. Then on the muster roll of 1277 we find this entry: 'Robert of Lewknor says that be 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: Parl. Writs, i. 202. Then from Edward II.'s time we have this curious case:—O. 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; Madoz, Exch. i. 652.

3 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, succeeded by a great effort in forcing 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. In 1277 they did. their service in Wales, and, according to the chronicler, the abbot profited thereby; for the total cost amounted to but 50 marks and almost

CH. I. § 3.] Knight's Service. 273

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 contributed towards his expenses1. 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 pecuniary 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 [p. 253] that he is to do, or to provide, the requisite military service, and is then to take scutage from his tenants. All this must have tended to change the true nature of the obligation even of those 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 into money of

all the prelates of England weie 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; Geata Abbatum, i. 435, ii. 94.)

i Mat. Par. Chron. Maj. vi. 437-9; Gesta Abbatum, ii. 45.

a See e.g. Note Book, pi. 795, where a tenement is said to owe 10 pence scutage, when the rate is £2 on the knight's fee.

P.M. I. 18



[BK. ii.

right to scutage.

the personal service due from the subvassals seems to have taken place1.

The lord's What is more, the right of a mesne lord to take scutage seems hardly to have been regarded, at least in the thirteenth century, as a right given by the common law. A lord who had done his service, or made fine for not doing it, could with some trouble to himself obtain a writ de scutagio hdbendo, 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 obtain a grant of scutage from the king, then the king himself took the scutage from their tenants for his own use8. As already said, there is in scutage an [p-254] element of royal and national taxation which is incompatible with purely feudal principles.

Whether the tenant of a mesne lord could insist upon his

scutage0* "gh^ *° do service in the army instead of paying scutage is a question that we are absolved from discussing, for perhaps


1 The question 'whether escuage was a tenure distinct from knight service?' suggested by Littleton's text, has been learnedly discussed by Madox, Wright, Blackstone, Hargrave and others. The answer to it seems to be:—(1) From an early time there were many tenants, those of small aliquot parte of knights' fees, who were bound to pay scutage, but who can hardly, 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 tervitium militare, and his lord had the rights of wardship and marriage.

2 The writ is in Eeg. Brev. Orig. f. 88 (scutage of 1 Edw. in.). For earlier writs see Hot. 01. i 371 (1217), 377 (1218), 475 (1221), 571 (1223), 605-610 (1224). See also Madox, Exch. i. 675; Note Book, pi. 333, 1687, and Bolls of Parl. i. 166, where on the petition of the barons the king grants them their scutage. So in Normandy the 'auxilium exercitus' is denned as 'illud pecuniale quod concedit princeps Normanniae, facto exercitus per quadraginta dies ser-vitio, baronibus et militibus de illis qni tenent de eis feodum loricale vel de tenentibus suis in feodo loricali: nee maius auxilium de suis tenentibus poternnt extorquere quam eis coucessam fuerit a Principe Normannonun'; Somma, p. 70.

» Madox, Exch. i. 680-684; see especially the case on p. 682, note r. (27 Hen. in.): William de Hayrun is summoned before the Exchequer for having taken scutage from a military tenant of his, whereas it ought to have been paid to the sheriff.

CH. i. § 3.] Knight's Service. 275

it was never raised1. 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 commuted for money payments.

One more exceedingly obscure process must be noticed. Seduction Somehow or another in the second half of the thirteenth cen- number of tury the tenants in chief succeeded in effecting a very large f^ reduction in the number of fees for which they answered to the king*. When, for example, Edward I. called out the feudal host in 1277, his ecclesiastical barons, who, according to the reckoning of the twelfth century, were holding about 784 fees, would account, and were suffered to account, for but little more than 100, while some 13 knights and 35 serjeants—two serjeants l>eing 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 Ely from forty to six, the abbot of Peterborough from sixty to five. The lay barons seem to have done much the same. Humphry de Bohun offers three knights as due from his earldom of Essex; Gilbert of Clare, [p. 255] earl of Gloucester and 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 do not even produce the very small contingents which they acknowledge to be due. Now these magnates were not cheating the king, nor endeavouring to cheat him. It was well known in the exchequer, notorious throughout Cambridgeshire *, that the bishop

1 There is Norman authority from 1220 for an affirmative answer. Delisle, Becneil de jugements, p. 76: 'ludicatum est...qnod Abbas [mesne lord] non potest alium mittere in loco eiusdem F. [tenant by knight's service] ad faciendum gervicium qnod feodum dicti P. debet quando dominus rex debet seu vult capere serviciom snmn de Abbate, dam idem P. servicinm quod debet de feodo sno in propria persona sua facere velit.'

1 Charter of 1215, c. 29. A substitute may be sent, but only for reasonable canse.

9 See the two master rolls of the feudal host; Parliamentary Writs, i. 197, 228.

4 Hot. Hund. ii. 441.


276 Tenure. [BK. n.

of Ely, who would confess to but six fees, had forty at the 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 fee1, 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 pays in respect of every fee.

Meaning of This change seems to tell us three things. In the first g«- piac6j it wag 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 costly article. In the third place, the king by this time wanted money 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 hardly find six tenants willing to fight, prefers the new set of phrases. But then, our already confused 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 fine, CP-' 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 be is lucky and persistent, about half the sum that he has bad to pay to the king. But in truth, the whole system is becoming obsolete. If tenure by knight's service had been abolished in 1300, the kings of the subsequent ages would have been deprived of the large revenue that they drew from wardships, marriages and so forth; really they would have lost little else*.

1 Gesta Abbatum, ii. 94.

* As regards the shape that scutage assumed at various periods, we have

CH. i. § 3.] Knight's Service. 277

We have next to observe that a lord when enfeoffing a Military tenant was -free to impose other services in addition to that rombhied military service which was incumbent on the land. Suppose ^^m that B holds a knight's fee of A; B may enfeoff C of the fee, stipulating that C shall do the military service and also pay him a rent. Perhaps it was usual that a tenant who held a whole knight's fee should have no serious service to perform in 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 rents1. A few entries on the Oxfordshire Hundred Roll will illustrate this. At Rycote, 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 [p. 257] scutage; another holds three acres for the rent of a penny and owes scutage*. Often it is said of the small freeholders that beside their rent they owe royal or forinsec service (debent regale, debent forinsecum)*, 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 unum obolum)t his tenure is military, and this rule is fully borne out by

here dealt bat superficially with a most difficult 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. See Hall, Lib. Bub. vol. ii, Preface.

1 The fines of Richard'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 servicinm quod ad tantum terrae pertinet'; (p. 31) a gift of a 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 forinseco servitio quod ad dominum Begem pertinet de eadem qnarta parte virgatae terrae'; (p. 95) a gift of a messuage and seven virgatea to be held of the donor by the service of 24 shillings annually 'salvo regali servicio scilicet servicio dimidii militia'; (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.'

* Bot. Hund. it 756.

» Bot. Hand. ii. e.g. 733, 767, 769.

278 Tenwre. [BK. n.

pleadings and decisions1. 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*. Castle- With the duty of attending the king in his wars was often

*" 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 Buckingham4, the knights of the Abbey of St Edmund his castle of Norwich. In Henry L'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 Normandy8 and France7, and is mentioned in Domesday Book8. The forty or fifty knights of St Edmunds were divided into four or five troops (constabiliae), each of which had [p. 258] to guard Norwich castle for three months in the year*. Often a tenement owed ' ward' to a far-off castle; thus in Cambridgeshire were lands held of the Count of Aumale which owed ward to his castle of Craven10, and lands held of the Count of Britanny which owed ward to his castle of Richmond11. We speak as though these castles belonged to their tenants in

1 Bracton, f. 37. See the cases cited above, p. 239, note 2.

1 It is rare, {hough 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 to nomine from the villeins, as this might have encouraged them to assert that their tenure was free.

* Hist. Abingd. ii. 3. « Hot. 01. i. 297.

* Pipe Boll, 31 Hen. I., p. 44; Monast. i. 482.

* See the Assisiae Normaniae in Warnkonig's Franzosische Rechtsgeschichte, ii., e.g. p. 73 (A.D. 1208): 'apud Bellum Montem debebat servicium quinque militum per quadraginta dies ad cnstodiendnm castellum ad cnstnm domini de Bello Monte.'

1 Viollet, fetablissements, ii. 80.

8 D. B. i. 151 b: ' De eodem Lenuino tenuit Radulfna Passaquam et invenie. bat duos loricatos in custodia de Windesores.'

* 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.

10 Eot. Hund. ii. 548. u Eot. Hund. ii. 580.

CH. I. § 3.] Knight's Service. 279

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 duty1.

While the military system of feudalism is thus falling into ^l*"1*6 decay there still may be found in the north of England drengage. 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, for 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 considered as marks of villeinage; finally, as it would seem, th.ey were brought under the heading of free socage. In truth they were older than the lawyers' classification, older than the Norman Conquest1.

Above we have made mention of tenure by barony and Tenure by

J * barony.

passed it by with few words; and few seem needed. True, we may find it said of a man, not only that he holds a barony (tenet baroniam), but also that he holds by barony (tenet per baroniam), and this may look as though tenure by barony [p-259] should be accounted as one of the modes of tenure*. 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

1 Hall, Liber Eubeus, ii p. oezzzvi.

* See Maitland, Northumbrian Tenures, E. H. R. v. 625; Hall, Liber Rubens, ii. p. eexL B.

* Rot. Hand. ii. 18: 'Radalfus de Gaugy tenet feodum de EUincham de dom. Bege in capite per baroniam per servicium trium militum.'

280 Tenure. [BK. 11.

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, all 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 p