The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Second Edition
• Preface to the First Edition
• List of Abbreviations
• List of Texts Used. 1
• Additions and Corrections
• Book I: Sketch of Early English Legal History
• Chapter I: The Dark Age In Legal History
• Chapter II: Anglo-saxon Law
• Chapter III: Norman Law 1
• Chapter IV: England Under the Norman Kings
• Chapter V: Roman and Canon Law
• Chapter VI: The Age of Glanvill
• Chapter VII: The Age of Bracton
• Book II: The Doctrines of English Law In the Early Middle Ages
• Chapter I: Tenure
• Chapter II: The Sorts and Conditions of Men
• Chapter III: Jurisdiction and the Communities of the Land

BOOK I

SKETCH OF EARLY ENGLISH LEGAL HISTORY

CHAPTER I

The Dark Age in Legal History

The difficulty of beginning.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 deacon.1 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.2 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.

Proposed retrospect.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.3

The classical age of Roman law.By the year 200 Roman jurisprudence had reached its zenith. Papinian was slain in 212,4 Ulpian in 228.5 Ulpian’s pupil Modes-tinus may be accounted the last of the great lawyers.6 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.

The beginnings of ecclesiastical 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 property.7 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 faithful.8 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 overseer.9 Long indeed would it be before 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 priesthood10 was not priestly enough.11

Third Century. Decline of Roman law.The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility;12 it was sharing the fate of art.13 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 Gregorianus, the Codex Hermogenianus. These have perished; they were made, some say, in the Orient.14 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.15 The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king.16

Fourth Century. Church and State.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 crime.17 Before the end of the century cruel statutes were being made against heretics of all sorts and kinds.18 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 Arles (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa.19 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 empire20 go whatever juristic ability, and whatever power of organization are left among mankind. The new supernatural jurisprudence was finding another mode of utterance; the Bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor.21 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 Romans.22 For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled.23 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 tribunal.24 It was necessary for the state to protest that criminal jurisdiction was still in its hands.25 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.26 If from one point of view we see this as a triumph of anarchy, from another it appears as a triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a supernatural sort, in order that it may rule the world.

Fifth Century. The Theodosian Code.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 us.27 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 Godefroi.28 Indeed we may say that the fall of a loose stone in Britain brought the crumbling edifice to the ground.29 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.

Laws of Euric.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 his West Goths, perhaps between 470 and 475.30 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 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 law-books, that of Reckessuinth (652–72), 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 law.31

Sixth Century. The century of Justinian.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 compiled.32

The Lex Salica.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.33 It comes to us from the march between the fifth and sixth centuries; 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 unique34 ) 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.35 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.

The Lex Ribuaria and Lex Burgundionum.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 596.36 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 Burgundionum was issued by King Gundobad (474–516) in the last years of the fifth century.37

The Lex Romana Burgundionum.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 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 Savoy.38 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 soldiers.39 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 former40 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.The Lex Romana Visigothorum. Far more comprehensive and far more important was the Breviary of Alaric or Lex Romana Visigothorum.41 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 Gregorianus 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 abridgements.42

Importance of the Breviary.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 race.43 On the other hand, it struck deep root in Gaul. It became the principal, if not the only, representative of Roman law in the expansive realm of the Franks. But even it was too bulky for men’s needs. They made epitomes of it and epitomes of epitomes.44

The Edictum Theodorici.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.45

The Collectio Dionysiana.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 Iuris Canonici. 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).46 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 673.47 A version of it (Dionysio-Hadriana) was sent by Pope Hadrian to Charles the Great in 774.48 It helped to spread abroad the notion that the popes can declare, even if they cannot make, law for the universal church, and thus to contract the sphere of secular jurisprudence.

Justinian’s books.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, the main work that he did for the coming 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 Berytus.49 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.

Justinian and Italy.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 Byzantium.50 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 petitione Vigilii (554).51 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 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 successors, Constantine IV., will pay Rome a twelve days’ visit (663) and rob it of ornaments that Vandals have spared;52 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 Italy,53 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 state.54 The Bishop of Rome did not mean to be the head of a department.

Laws of Æthelbert.During some centuries Pope Gregory the Great (590–604) is one of the very few westerns whose use of the Digest can be proved.55 He sent Augustin to England. Then in “Augustin’s day,” about the year 600, Æthelbert of Kent set in writing the dooms of his folk “in Roman fashion.”56 Not improbably he had heard of Justinian’s exploits; but the dooms, though already they are protecting with heavy bót 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.57 The acceptance of the new religion must have revolutionary consequences in the 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 law.58 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.

Seventh and Eighth Centuries. Germanic laws.The century which ends in 700 sees some additions made to the Kentish laws by Hlothær and Eadric, and some others made by Wihtræd; there the Kentish series ends. It also sees in the dooms of Ine the beginning of written law in Wessex.59 It also sees the beginning of written law among the Lombards; in 643 Rothari published his edict;60 it is accounted to be one of the best statements of ancient German usages. A little later the Swabians have their Lex Alamannorum,61 and the Bavarians their Lex Baiuwariorum.62 It is only in the Karolingian age that written law appears among the northern and eastern folks of Germany, the Frisians, the Saxons, the Angli and Warni of Thuringia, the Franks of Hamaland.63 To a much later time must we regretfully look for the oldest monuments of Scandinavian law.64 Only two of our “heptarchic” kingdoms leave us law, Kent and Wessex, though we have reason to believe that Offa the Mercian (ob. 796) legislated.65 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), Æthelbert (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,66 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 prudentes.

System of personal laws.As the Frankish realm expanded, there expanded with it a wonderful “system of personal laws.”67 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 law.68 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.69 But in the kingdoms founded by Goths and Burgundians the intruding Germans were only a small part 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 seen,70 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 Lombards.71 In the future the renovatio imperii 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.

The vulgar Roman law.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 recovered.72 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 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 adopted.73 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 römisches Vulgarrecht, 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 language.74 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.75 That England produces no formulary books, no books of “precedents in conveyancing,” such as those which in considerable numbers were compiled in Frankland,76 is one of the many signs that even this low Roman law had no home here; but neither did our forefathers talk low Latin.

The latent Digest.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 modern 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.

The capitularies.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).77 Within a sphere which cannot 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 books.78 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.

Growth of Canon law.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 Isidoriana,79 for without sufficient warrant it has been attributed to that St. Isidore of Seville (ob. 636), whose Origines80 served as an encyclopaedia of jurisprudence and all other sciences. The Hispana made its way into France, and it seems to have already comprised some spurious documents before it came to the hands of the most illustrious of all forgers.

Ninth and Tenth Centuries. The false Isidore.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.

The forged capitularies.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 reared.81

Church and State.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 prologue.82 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 Prüm (906–915),83 Burchard, Bishop of Worms (1012–23),84 and Ivo, Bishop of Chartres (ob. 1117).85 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.

The darkest age.Historians of French and German law find that a well-marked period is thrust upon them. The age of the folk-laws 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”86 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 Carloman II. in 884, and that the first legislative ordonnance is issued by Louis VII. in 1155.87 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 feudalism.88 Meanwhile the innermost texture of human society was being changed; local customs were issuing from and then consuming the old racial laws.

Legislation in England.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 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, Æthelstan, Edmund, Edgar, Æthelred 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 tale.89 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.90 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.

England and the continent.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 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 land.91 Such power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine;92 indeed Æthelred’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 Æthelred or strong like Cnut, is expected to publish laws.

Eleventh Century.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,The Pavian law-school. 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 instructed jurisprudence. Then at Pavia 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 (iudices 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 Romagna.93

The new birth of Roman law.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.94 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 evanescent traces of a school of law at Rome or at Ravenna which others cannot 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 compiled;95 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 bible.96 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 Rome.97 In 1076 the Digest was cited in the judgment of a Tuscan court.98 Then, about 1100, Irnerius was teaching at Bologna.99

The recovered Digest.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 science claimed its rights, its share of men’s attention. It was a science of civil life to be found in the human, heathen Digest.100

Influence of the Bolognese jurisprudence.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 l’unité 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.

CHAPTER II

Anglo-Saxon Law

Scope of this chapter.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 kind.1

Imperfection of written records of early Germanic law.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 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 cannot 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 Rome.2

Although English princes issued written dooms with the advice of their wise men at intervals during nearly five centuries, it seems all but certain that none of them did so with the intention of constructing a complete body of law. The very slight and inconspicuous part which procedure takes in the written Anglo-Saxon laws is enough to show that they are mere superstructures on a much larger base of custom. All they do is to regulate and amend in details now this branch of customary law, now another. In short, their relation to the laws and customs of the country as a whole is not unlike that which Acts of Parliament continue to bear in our own day to the indefinite mass of the common law.

Anglo-Saxon dooms and custumals.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 Æthelbert 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.3 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 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.

Charters.Another kind of contemporary writings affords us most valuable evidence for the limited field of law and usage which those writings cover. The field, however, is even more limited than at first sight it appears to be. We mean the charters or “land-books” which record the munificence of princes to religious houses or to their followers, or in some cases the administration and disposition of domains thus acquired. Along with these we have to reckon the extant Anglo-Saxon wills, few in number as compared with charters properly so called, but of capital importance in fixing and illustrating some points. It was Kemble’s great achievement to make the way plain to the appreciation and use of this class of evidences by his Codex Diplomaticus. We have to express opinions more or less widely different from Kemble’s on several matters, and therefore think it well to say at once that no one who has felt the difference between genius and industrious good 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 correct.4

Chronicles etc.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 do not think that the general literary evidence, so to call it, is remarkable either in quantity or in quality. Such as we have is, as might be expected, of social and economic interest in the first place, and throws a rather indirect light upon the legal aspect of Anglo-Saxon affairs.

Anglo-Norman documents.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.

Survey of Anglo-Saxon legal institutions.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.

Personal conditions: lordship.As regards personal condition, we find the radical distinction, universal in ancient society, between the freeman and the slave. 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 freemen and the slave; but there are also differences of rank and degrees of independence among freemen, which already prepare the way for the complexities of medieval society. Some freemen 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 Æthelstan 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 vagabond.5 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.6 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 freemen 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 freemen bound to work on the lands of others, for an ordinance of Alfred fixes the holidays that are to be allowed them; and we can hardly doubt that this work was incident to their own tenure.7 At all events dependent landholding 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 dynasty.8

The family.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 commonwealth of the modern type. In the England of the tenth century,9 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 members.10 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 his kindred, and that the oath used for the purpose included an express renunciation of any future rights of inheritance. We do not know whether this was at all a common practice, or whether any symbolic ceremonies like those of the Salic law were or ever had been required in England.11

Ranks: ceorl, eorl, gesíð.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 preeminence is accorded (as among almost all Germanic people)12 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, under Danish influence, to denote a specific 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. “Gesíð” 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 “gesíðcund.”

Thegn.The official term of rank which we find in use in and after Alfred’s time is “thegn”13 (þegen, 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 (horsþegen, discþegen, 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 signify a town house), and a special place in the king’s hall. The like right is ascribed to a merchant who has thrice crossed “the wide sea” (the North Sea as opposed to the Channel) at his own charges.14 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.15

Other distinctions.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.

Privileges of clergy.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 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.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 punishment;16 and one obscure passage seems to relate to the offence of kidnapping freeborn men.17 Ine’s dooms forbade the men of Wessex to sell a countryman beyond seas, even if he were really a slave or justly condemned to slavery.18

Slave-trade.Selling Christian men beyond seas, and specially into bondage to heathen, is forbidden by an ordinance of Æthelred, repeated almost word for word in Cnut’s laws.19 Wulfstan, Archbishop of York, who probably took an active part in the legislation of Æthelred, denounced the practice in his homilies,20 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 the slave trade from Bristol to Ireland (where the Danes were then in power) called forth the righteous indignation of another Wulfstan, the Bishop of Worcester, who held his place through the Conquest. He went to Bristol in person, and succeeded in putting down the scandal.21 Its continued existence till that time is further attested by the prohibition of Æthelred and Cnut being yet again repeated in the laws attributed to William the Conqueror.22

Manumission.Freemen 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 duty.23 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 serf.24 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 domain.25 There is nothing to suggest that freed-men 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 disposal.26 Moreover, even the earliest written laws constantly assume that a “theow” might be able to pay fines for public offences.

Slavery and serfage.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 texts,27 we find mention in Kent, under the name of lœt, 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.28 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-helper.29

Courts and justice.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 Wessex,30 and perhaps preserve the tradition of a time when there was no jurisdiction save by consent of the parties. Probably the public courts were always held in the open air; there is no mention of churches being used for this purpose, a practice which was expressly forbidden in various parts of the continent when court houses were built. Private courts were held, when practicable, in the house of the lord having the jurisdiction, as is shown by the name halimote or hall-moot. This name may indeed have been given to a lord’s court by way of designed contrast with the open-air hundred and county courts. The manor-house itself is still known as a court in many places in the west and south-east of England.31Halimote 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 manner for the king’s jurisdiction.

The staple matter of judicial proceedings was of a rude and simple kind. In so far as we can trust the written laws, the only topics of general importance were manslaying, wounding, and cattle-stealing. So frequent was the last-named practice that it was by no means easy for a man, who was minded to buy cattle honestly, to be sure that he was not buying stolen beasts, and the Anglo-Saxon dooms are full of elaborate precautions on this head, to which we shall return presently.

Procedure.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 individual cases.32 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-helpers33 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 text.34 Trial by combat was to all appearance unknown to the Anglo-Saxon procedure,35 though it was formally sanctioned on the continent by Gundobad, king of the Burgundians, at the beginning of the sixth century and is found in the laws of nearly all the German tribes.36 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 form.37 Permitted or justified private war, of which we do find considerable traces in England,38 is quite a different matter. The Anglo-Norman judicial combat belongs to a perfectly regular and regulated course of proceeding, is as strictly controlled as any other part of it, and has no less strictly defined legal consequences.

A “fore-oath,” distinct from the definitive oath of proof, was required of the party commencing a suit, unless the fact 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 alone to the alternative of a threefold oath or the ordeal.39

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.

Union of temporal and spiritual jurisdiction.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 justice,40 and the claim was fully allowed by princes who could not be charged with weakness.41 Probably the bishop was often the only member of the court who possessed any learning or any systematic training in public affairs.

The king’s justice not ordinary.The most general Anglo-Saxon term for a court or assembly empowered to do justice is gemót. In this word is included all authority of the kind from the king and his witan42 downwards. Folcgemót appears to mean any public court whatever, greater or less. The king has judicial functions, but they are very far removed from our modern way of regarding the king as the fountain of justice. His business is not to see justice done in his name in an ordinary course, but to exercise a special and reserved power which a man must not invoke unless he has failed to get his cause heard in the jurisdiction of his own hundred.43 Such failure of justice might happen, not from ill-will or corruption on the part of any public officer, but from a powerful lord protecting offenders who were his men.44

In such cases the king might be invoked to put forth his power. It is obvious that the process was barely distinguishable from that of combating an open rebellion.45

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 equity.46 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 kingdom.47

Jurisdiction of witan.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.48 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.

The charters that inform us of what was done, especially in 803 and 825, at the synods or synodal councils of Clovesho,49 that “famous place” whose situation is now matter of mere conjecture,50 leave no doubt that on these occasions, at least, the same assembly which is called a synod also acted as the witan. The secular and spiritual functions of these great meetings might have been discriminated by lay members not taking part in the ecclesiastical business; but it is by no means certain that they were.51 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.

County and hundred courts.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 weeks.52 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 otherwise.53

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 itself.54

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, 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.

Private jurisdiction.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 time.55

Subject-matter of Anglo-Saxon justice. 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 fact people who have no system of credit and very little foreign trade, and who do nearly all their business in person and by word of mouth with neighbours whom they know, have not much occasion for a law of contract. It is not our purpose to consider in this place the relation of Anglo-Saxon customs and ordinances to those of Germanic nations on the continent; to inquire, for example, why the Salic or the Lombard laws should present striking resemblances even in detail to the laws of Alfred or Cnut, but provide with equal or greater minuteness for other similar cases on which the Anglo-Saxon 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 rules.56 But this kind of reference, at the hands of a compiler who could also quote the Theodosian code,57 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.

The king’s peace.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 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 freeman; and, secondly, the special protection of the king’s attendants and servants, and other persons whom he thought fit to place on the same footing. In the later Anglo-Saxon period the king’s particular protection is called grið as distinct from the more general word frið. Although the proper name is of comparatively recent introduction58 and of Scandinavian extraction, the thing seems to answer to the Frankish sermo or verbum regis, which is as old as the Salic law.59 The rapid extension of the king’s peace till it becomes, after the Norman Conquest, the normal and general safeguard of public order, seems peculiarly English.60 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 order.61

The various peaces.It is not clear whether there was any fixed name for the general peace which was protected only by the hundred court and the ealdorman. Very possibly the medieval usage by which an inferior court was said to be in the peace of the lord who held the court may go back in some form to the earliest time when there were any set forms of justice; and there is some evidence that in the early part of the tenth century men spoke of the peace of the witan.62 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,63 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.

Feud and atonement.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 law.64 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 few extreme cases which also finally disappear. At the same time, the wrong done to an individual extends beyond his own family; it is a wrong to the community of which he is a member; and thus the wrong-doer may be regarded as a public enemy. Such expressions as “outlaw against all the people” in the Anglo-Saxon laws preserve this point of view.65 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.

Tariff of compositions.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-payment,”66 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 Alfred,67 the power of the ealdorman, and of the king at need, may be called in if the plaintiff is not strong enough by himself; in other words the contumacious denier of justice may be dealt with as an enemy of the commonwealth. At a somewhat later time we find the acceptance and payment of compositions enforced by putting the obligation between the parties under the special sanction of the king’s peace.68 But it was at least theoretically possible, down to the middle of the tenth century, for a manslayer to elect to bear the feud of the kindred.69 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.

Wer, wíte, bót.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. Wíte is the usual word for a penal fine payable to the king or to some other public authority. Bót (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 bótleás, “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 wíte must be very ancient; it corresponds to what is told us of German custom by Tacitus.70

Punishment.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 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 lord.71 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.72

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 times.73 In criminal proceedings, however, it was used as a substantive penalty for violent resistance to a legal process or persistent contempt of court.74 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.75 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.76

Difficulties in compelling submission to courts.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 persons described as “frequently accused,” “of no credit.”77 One who had been several times charged (with theft, it seems we must understand), and kept away from three courts running, might be pursued and arrested as a thief, and treated as an outlaw if he failed to give security to answer his accusers.78 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.

Maintenance of offenders by great men.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 right.79 If it was needful for Æthelstan, 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 century.80

Why no trial by battle.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 Lombard81 freemen would submit to being forbidden to fight out of court on the terms of being allowed to fight under legal sanction, thus combining the physical joy of battle with the intellectual luxury of strictly formal procedure. It seems plausible to suppose that the mechanism of Anglo-Saxon government was not commonly strong enough to accomplish even 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.

Special offences treason.Offences specially dealt with in various parts of the Anglo-Saxon laws are treason, homicide, wounding and assault (which, however, if committed by freemen, are more wrongs than crimes), and theft. Treason to one’s lord, especially to the king, is a capital crime. And the essence of the crime already consists in compassing or imagining the king’s death, to use the later language of Edward III.’s Parliament.82 The like appears in other Germanic documents.83 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 magistrates.84 No part of the Roman law was more likely to be imitated by the conquerors of Roman territory and provinces; and when an idea first appears in England in Alfred’s time, there is no difficulty whatever in supposing it imported from the continent. Not that rulers exercising undefined powers in a rude state of society needed the Lex Julia to teach them the importance of putting down conspiracies at the earliest possible stage. We are now speaking of the formal enunciation of the rule. On the other hand, the close association of treason against the king with treason against one’s personal lord who is not the king is eminently Germanic. This was preserved in the “petty treason” of medieval and modern criminal law.

The crime of treason was unatonable,85 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 ordeal,86 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.87

Homicide.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 “morð” at one time meant only killing by poison or witchcraft. The offence of “morð” was unatonable, and the murderer, if ascertained, might be delivered over to the dead man’s kindred.88

Justifiable homicide.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.89 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 lord.90 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 man.91 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.92

Personal injuries: misadventure.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 freeman, or shaving his head in derision, or shaving off his beard, was visited with heavier fines than any but the gravest wounds.93 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 were in front (so that he could have seen the other’s danger).94 This is rational enough; but in the case of harm ensuing even by pure 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 proverb.95 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 bad 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.96 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 him.”97 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 him,98 perhaps even for their return free from any charge of having been unlawfully used.99 Such a charge might have involved the forfeiture of the weapon until quite modern times.

Archaic principle of responsibility for accidents.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 documents.100 Liability for damage done by dogs is on the other hand rather elaborately dealt with by a scale of compensation increasing after the first bite.101

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.102 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 compensation.103

Theft.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 Ine.104 Perhaps this is to meet the case of a thief driving cattle a certain distance and then slaughtering them, and hiding the flesh apart from the hides and horns, which would be more easily identified. If we are surprised by the severity with which our ancestors treated theft, we have only to look at the prevalence of horse-stealing in the less settled parts of the western American states and territories in our own time, and the revival of archaic methods for its abatement. Collusion with thieves on the part of seemingly honest folk appears to have been thought quite possible: Cnut required every man above twelve years to swear that he would be neither a thief nor an accomplice with thieves,105 and special penalties for letting a thief escape, or failing to raise, or follow, the hue and cry, point in the same direction.106 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 house.107 But as late as the early part of the eleventh century, Wulfstan’s homily108 complains that “cradle-children” are unjustly involved in the slavery of their parents. All this, however, belongs to social antiquities rather than to legal history. The common law of theft is wholly post-Norman. Nor is it needful to dwell on the Anglo-Saxon treatment of special and aggravated forms of theft, such as sacrilege.109 Stealing on Sunday, in Lent, and on Christmas, Easter, or Ascension Day, was punishable with a double fine by the old Wessex law.110

Property.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 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.

Sale and other contracts.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 church. There is great reason to believe that everywhere or almost everywhere a religious sanction of promises has preceded the secular one,111 and that honourable obligation has been more effective than might be supposed in aiding or supplementing the imperfections of legality.112 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 regulated;113 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 saints.114 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.

Claims for stolen things: warranty.On the other hand, there runs persistently through the Anglo-Saxon laws a series of ordinances impressing on buyers of cattle the need of buying before good witnesses. But this has nothing to do with the validity of the sale between the parties. The sole purpose, judging by the terms and context of these enactments, is to protect the buyer against the subsequent claims of any person who might allege that the cattle had 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. Hlothær and Eadric laid down the precautions to be observed by a Kentish man buying cattle in London, then a Mercian town.115 Evidently great suspicion attached to sales made anywhere out of open market. Some ordinances require the presence of the portreeve or other credible men at sales without the gates; others attempt to prohibit selling altogether except in towns. Afterwards witnesses are required in town and country alike,116 and in the latest period we find the number of four witnesses specified.117 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. teám)118 or the custom on which they were founded, persisted for some time after the Norman Conquest,119 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 dooms of Ine contain a curious archaic provision120 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.

Land tenure.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 elsewhere,121 and we may confine ourselves here to a short statement of what is positively known.

Book-land.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 exotic 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 landholding.

Inferior tenures: læ´ n-land.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 freemen;122 the homesteads were several, and every freeman was answerable for his own fence.123 There is little doubt that, except in the western counties, common-field agriculture was general if not universal;124 and probably the scheme of distribution and the normal amount of holdings was very like that which we find after the Conquest. Freemen sometimes held considerable estates under a lord, but our authorities are too scanty to enable us to say on what terms.125 In the later Anglo-Saxon period, land held of a superior, whether much or little, is called læ´n-land. It is not clear whether this term extended to customary tenures (those for example which would result from a grant of book-land as between the new lord and the occupiers) or was limited to interests created by an express agreement. In the latter case it may be compared with the Gallo-Frankish precarium, from which indeed it was perhaps derived.126

Folk-land.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 said127 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 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 freemen, 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 Vinogradoff128 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.129

Transition to Anglo-Norman feudalism.After the Norman Conquest book-land preserved its name for a time in some cases, but was finally merged in the feudal tenures in the course of the twelfth century. The relations of a grantee of book-land to those who held under him were doubtless tending for some considerable time before the 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.

CHAPTER III

Norman Law1

Obscurity of Norman legal history. Of the law of Normandy as it was on the eve of William’s expedition, little is known for certain. To illustrate the period 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, Æthelstan, Edmund, Edgar, Æthelred 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 Book or against those law-books which we know as the Leges of the Confessor, the Conqueror and Henry the First. The oldest financial records,2 the oldest judicial records3 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 très ancien Coutumier,4 are younger and slighter than our Glanvill, and the Grand Coutumier, if not younger, is slighter than our Bracton.5 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.6 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 ordinances of Merovingian and Karlovingian kings, will no longer meet the facts. When an Englishman of the twelfth century, the compiler of the Leges Henrici, strives to eke out the old English dooms with foreign texts and 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.

Norman law was French.The yet debated question, whether for a century or thereabouts 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 history, 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 tradition.7

Norman law was feudal.To say that the law of Normandy was mainly French is to 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 dependent and derivative land tenure.8 This however may well exist in an age which cannot 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 find feudo-vassalism more serviceable than feudalism. But the difficulty is not one which could be solved by any merely verbal devices. The impossible task that has been set before the word feudalism is that of making a single idea represent a very large piece of the world’s history, represent the France, Italy, Germany, England, of every century from the eighth or ninth to the fourteenth or fifteenth. Shall we say that French feudalism reached its zenith under Louis d’Outre-Mer or under Saint Louis, that William of Normandy introduced feudalism into England or saved England from feudalism, that Bracton is the greatest of English feudists or that he never misses an opportunity of showing a strong anti-feudal bias? It would be possible to maintain all or any of these opinions, so vague is our use of the term in question. What would be the features of an ideally 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.

Feudalism in Normandy.This, if true of the whole, is true of every element of feudalism, and true in the first place of that element whence it takes its name. In England from almost, if not quite, the earliest moment of its appearance, the word feodum 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 beneficium, and if we go back further we find beneficium 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 fee in one breath.9 The Norman conquest of England occurs at a particular moment in the history of this process. It has already gone far; the words feum, 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 unfreeman, 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 preeminently 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 Norman chronicles might induce us to say that the Normans had little law beyond “the good old rule, the simple plan.” But 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.

Dependent land tenure.To the great generalization which governs the whole scheme of Domesday Book, the theory that every acre of land is 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, rustici, and these tenants (that is to say, his rights over these tenants) he gives to the church.10 But further, if he has subordinates who have rights in the land, he has also superiors with rights in the land; he makes the gift with the consent of his lord; that lord’s confirmation is confirmed by the duke of the Normans, perhaps it is even confirmed once more by the duke or king of the French.11 Of the alodium we often read, and occasionally it is contrasted with the beneficium, the one still meaning full ownership, the other dependent, and in some degree precarious, tenure.12 But the two are being fused together. Sometimes the alodium is held of a lord and the alodial owner does not dispose of it, without his lord’s consent; nay, the lord has rights over him and over it, and those rights can be conveyed to a third person.13 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.14 We need not suppose that this had been so from the first, from the day when, according to Norman tradition, Hrolf roped out the land and distributed it among his followers.15 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 alodium16 —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 kinsfolk.17 On the eve of the conquest of England many of the great houses owed their greatness to some more or less legitimate relationship—legitimacy was a matter of degree—between them and the ducal family. Still the 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 brought.18

Seignorial justice.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 hereditary.19 Also the lands of the churches were defended by ducal grants of “immunity,” grants modelled on Frankish precedents.20 But the principles which regulated the existence and the competence of seignorial courts are very dark to us. Whether the right to hold a court can only be conferred by the sovereign’s grant, or whether it arises from the mere relation between lord and men, or between lord and tenants, is a question to which we get no certain answer for a long time after the conquest of England, whether we ask it of England or of Normandy. In good times, however, the duke’s justice was powerful throughout his duchy. It is as supreme judge hearing and deciding the causes of all his subjects, the guardian of the weak against the mighty, the stern punisher of all violence, that his courtly chroniclers love to paint him,21 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.22

Limits to the ducal power.As to any constitutional restraints on the ducal power, the most opposite opinions have prevailed. The duke of the earliest period has been everything, from the most absolute of monarchs to a mere first among equals.23 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 court,24 and just as the English witan attest or confirm the king’s grants, so the Norman proceres attest or confirm the charters of the duke.25 In the lower courts also, so it would seem, the lord of the court is not the only judge; he is surrounded by doomsmen.26

Legal procedure.Probably the ordinary procedure of the courts was much the same in Normandy and in England. In neither country had men passed the stage at which they look to the supernatural for proof of doubtful facts. The means of proof are solemn formal oaths and ordeals designed to elicit the judgment of God.27 One ordeal the Normans recognized which had no place in English law, namely, the ordeal of battle.28 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 law.Perhaps criminal law, or what served as such, had reached 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 bót and wer and wíte, 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 En gland 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 criminal tariff.29

Ecclesiastical law.We may be more certain that in another direction Norman law had outstripped English law along what must seem to us a destined path of progress. It had come in sight of an 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 “supernational” church to jurisdiction had raised difficult problems and been satisfied for a while by complicated compromises—but only for a while, for the church was not easily satiable.30 By the Conquest England was drawn into the midstream 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.31

The truce of God.One ecclesiastical institution there was in Normandy, which, 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 anarchical right by putting certain places and persons and seasons under the protection of the church and outside the limits of fair fighting. The truce of God had been received in Normandy; it reigned there after England had been conquered; but we only find very faint and uncertain traces in England either of it or of that tolerated private warfare which it presupposed.32

Condition of the peasantry.Of the condition of the great mass of the inhabitants of 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 assembly.33 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 in the twelfth.34 The charters of the Conqueror’s day frequently speak of hospites, coloni, rustici, villani, rarely of servi, though now and again we have hints that some men and some lands are not deemed “free.”35 In later times Normandy was distinguished among the provinces of France by a singular absence of serfage, and such evidence as we have tends to show that the Conqueror left a land where there were few slaves for one in which there were many, for one in which the slave was still treated as a vendible chattel, and the slave-trade was flagrant.

Jurisprudence.The Normans then had no written law to bring with them 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 Bec, Herlwin, who had spent most of his life as layman and knight, was deeply learned in the law of the land, and when he had become an abbot he still gave opinions in temporal causes; but not until he was near forty years of age did he learn the first rudiments of letters.36 His legal knowledge was probably the same in kind as that attributed, as we shall read hereafter, to the English bishop Æthelric 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.Lanfranc the Pavian lawyer. But the mention of Herlwin must remind us of Herlwin’s prior, of Lanfranc the lawyer of Pavia, of Lanfranc the Conqueror’s right-hand man. Those who tell us of the great theologian, of the great disciplinarian, never forget to add that he was a lawyer of world-wide fame, the most accomplished of pleaders. Now, as we have already said, the Lombard lawyers, especially the lawyers of Pavia, had been 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.37 Some Roman law they knew, and unless Pavian tradition deceives us, we may still read the ingenious arguments by which the youthful Lanfranc puzzled and abashed his conservative opponents, arguments which derive their force from the supposition that the dooms of King Liutprand and the institutes of Justinian are or ought to be harmonious.38 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 law.39 If he taught law at Avranches or at Bec,40 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 mouth41 —who mastered English law so thoroughly that he carried all before him even when the talk was of sake and soke,42 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.

CHAPTER IV

England under the Norman Kings

Effects of the Norman conquest.The Norman Conquest is a catastrophe which determines the whole future history of English law. We can make but the vaguest guesses as to the kind of law that would have 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.

No mere mixture of two national laws.But then, the problem to which the historian must address himself should not be stated as though it were a simple ethnical question between what is English and what is French. 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 one thing we may say with some certainty—cannot 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 Curt-hose. 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 our legal language.If for a moment we turn from the substance to the language of the law, we may see how slowly what we are apt to think the most natural consequences of the Conquest manifest themselves. One indelible mark it has stamped for ever on the whole body of our law. It would be hardly too much to say that at the present day almost all our words that have a definite legal import are in a certain sense French words. The German jurist is able to expound the doctrines of Roman law in genuinely German words. On many a theme an English man of letters may, by way of exploit, write a paragraph or a page and use no word that is not in every sense a genuinely English word; but an English or American lawyer who attempted this puritanical feat would find himself doomed to silence. It is true, and it is worthy of remark, that within the sphere of public law we have some old terms which have come down to us from unconquered England. Earl was not displaced by count, sheriff was not displaced by viscount; our king, our queen, our lords, our knights of the shire are English; our aldermen are English if our mayors are French; but our parliament and its statutes, our privy council and its ordinances, our peers, our barons, the commons of the realm, the sovereign, the state, the nation, the people are French; our citizens are French and our burgesses more French than English. So too a few of the common transactions of daily life can be described by English verbs. A man may give, sell, buy, let, hire, borrow, bequeath, make a deed, a will, a bond, and even be guilty of manslaughter or of theft, and all this in English. But this is a small matter. We will say nothing of the terms in which our 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 probably owes its salvation to its remote cousin the French lei.1

Struggle between Latin, French and English.But all this is the outcome of a gradual process; we cannot say that it is the necessary result of the conquest of England 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 English.2 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 preserved.3

Latin as a legal language. During the century that follows, Latin keeps its preeminence, and when, under Henry II. and his sons, the time comes for the regular enrolment of all the king’s acts and of all the judgments of his court, Latin becomes the language of our voluminous official and judicial records. From this position it is not dislodged until the year 1731, when it gives place to English.4 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 day.5 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 upstart.6

Struggle between French and English.But, though throughout the middle ages some Latin could be written by most men who could write at all, and the lord of a manor would still have his accounts as well as his court rolls made up in Latin, still only the learned could speak Latin readily, and it could not become the language of oral pleading or of debate. Here was a field in which French and English 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 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; 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 French.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 mean.7 It is difficult for us to believe that in the local courts, the suitors, who were for the more part peasants, pleaded their causes and rendered their judgments in French; still from the thirteenth century we get books of precedents for pleadings in manorial courts which are written in French, while we look in vain for any similar books written in English.8 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 Hall.9 Then in 1362 a statute, itself written in French, declared that as the French tongue was but little understood, all pleas should be “pleaded, shown, defended, answered, debated and judged” in the English tongue.10 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.11 Down to the end of the middle ages a few Old English terms perdured which, at least as technical terms, we have since lost: English “domes-men” might still “deem dooms in a moot hall”; but the number of such terms was small and the blight of archaism was on them.12

French documents.Meanwhile men had begun to write French and to write it for legal purposes. Legal instruments in French come to us but very rarely, if at all, from the twelfth century;13 they 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.

Language of Statute law.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 Oxford.14 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 roll,15 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 En glish legislature are written mainly in English, and to this day, as all know, what a lawyer must regard as the most solemn of all our formulas is French— La reine le veult.16

French law-books. Again, in the thirteenth century French slowly supplanted Latin as the literary language of the law. It is very possible that the learned Bracton thought about law in Latin; he wrote in Latin, and the matter that he was using, whether he took it from the Summa Azonis or from the plea rolls of the king’s court, was written in Latin. But the need for French text-books was already felt, and before the end of the century this need was being met by the book that we call Britton, by other tracts,17 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.18

Language and law.This digression, which has taken us far away from the 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 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 England.19

Preservation of Old English law.We may safely say that William did not intend to sweep away English law and to put Norman law in its stead. On the contrary, he decreed that all men were to have and hold the law of King Edward—that is to say, the Old English law—but with certain additions which he, William, had made to it.20 So far as we know, he expressly legislated about very few matters.The Conqueror’s legislation. He forbad the bishops and archdeacons to hold in the hundred courts pleas touching ecclesiastical discipline; such pleas were for the future to be judged according to the canons and not according to the law of the hundred; the lay power was to aid the justice of the church; but without his leave, no canons were to be enacted and none of his barons or ministers excommunicated.21 He declared that his peace comprehended all men both English and Normans.22 He required from every freeman an oath of fealty.23 He established a special protection for the lives of the Frenchmen; if the slayer of a Frenchman was not produced, a heavy fine fell on the hundred in which he was slain. He declared that this special protection did not extend to those Frenchmen who had settled in England during the Confessor’s reign.24 He defined the procedural rules which were to prevail if a Frenchman accused an Englishman, or an Englishman a Frenchman.25 He decreed that the county and hundred courts should meet as of old. He decreed that every freeman should have pledges bound to produce him in court.26 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 the country. He substituted mutilation for capital punishment.27 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.

Character of William’s laws.In the long run by far the most important of these rules will be that which secures a place in England for the canonical 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 subju-gated 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 sales.28 It was old, if disregarded, law that men were not to be sold over sea.29 It was law of Cnut’s day that every freeman should be in pledge.30 A wave of religious sentiment had set against capital punishment.31 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 right.32 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.33 Again, 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. 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 cannot say that the legislator here shows a marked partiality for one class of his subjects. In this matter mere equality would not be equity, for English law has not known the judicial combat, and perhaps the other ordeals have not been much used in Normandy. As it is, the Englishman, whether he be accuser or accused, can always insist on a wager of battle if he pleases; he is the Norman’s peer.34

Personal or national law.In different ages and circumstances the pride of a conquering 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 Englishmen.35 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, and aliens can have no part or lot in it. Perhaps we should be wrong were we to attribute any large measure of either of these sentiments to the generality of the Norman invaders; but probably they stood nearer to the old and tribal than to the modern and political point of view. A scheme of “personal laws” would have seemed to them a natural outcome of the conquest. The Norman will proudly retain his Norman law and leave English law to the English. We have seen that in matters of procedure William himself favoured some such scheme, and to this idea of personal law may be due what is apt to look like an act of gross iniquity. Roger of Breteuil and Waltheof conspired against William; Waltheof was condemned to death; Roger was punished “according to the law of the Normans” by disherison and perpetual imprisonment.36 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 proved.37 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.38 No doubt William and his sons distrusted the English; even Henry would suffer no Englishman to be abbot or bishop.39 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.

Maintenance of English land law.Indeed the capital instance of harsh treatment consists in 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, 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.

The English in court.All this made English testimony and English tradition of importance; the relative rights of the various Norman magnates were known only to Englishmen. Englishmen were mixed up with Frenchmen at the moots and often spoke the decisive word. The aged Æthelric, 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-fyrmð.40 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.41 Godric, Godwin and Colswein were among the “approved knights French and English” who heard the Abbot of Ely’s suit at Kentford, and that suit, in which many Normans were concerned, was decided under the king’s command by a verdict of English jurors who knew how the disputed lands lay in the time of King Edward.42 The Abbot of Abingdon was protected in his possessions by the learning and eloquence of lawyerly English monks, whose arguments were not to be withstood.43

Norman ideas and institutions.On the other hand, it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently 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 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 II.44 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 of race to race as in the establishment of an exceedingly strong kingship which proves its strength by outliving three disputed successions and crushing a rebellious baronage.45

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 the people at large. In 1093, sick and in terror of death, he set his seal to some document that has not come down to us. Captives were to be released, debts forgiven, good and holy laws maintained.46 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
• Iudicibus legis, ac ad convivia regis,
• Regum regnorum flos est domus illa domorum.47

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

Henry I.Henry at his coronation, compelled to purchase adherents, granted a charter full of valuable and fairly definite concessions.48 He was going back to his father’s ways. The abuses introduced by his brother were to be abolished, abuses in the matter of reliefs, wardships, marriages, murder fines and so forth. Debts and past offences were to be forgiven. The demesne lands of the military tenants were to be free from the danegeld. Above all the laga Eadwardi as amended by William I. was to be restored. Though the king required that concessions similar to those which he made in favour of his barons should be made by them in favour of their tenants, we can hardly treat this charter as an act of legislation. It is rather a promise that the law disregarded by Rufus shall henceforth be observed. This promise in after times became a valuable precedent, but it could not be enforced against the king, and Henry did not observe it. The other great record of his reign, the Pipe Roll of his thirty-first year, shows that rightfully or wrongfully he was able to extend the rights of the crown beyond the limits that had been assigned to them in 1100, and the steady action of the exchequer under the direction of his able minister, Bishop Roger of Salisbury, evolved a law for the tenants in chief which was perhaps the severest in Europe.49 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 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.50 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.51 We have, however, a writ in which he speaks of the “new statutes” which he had made against thieves and false moneyers.52

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.”53 Later on he had to promise once more that he would observe “the good laws and just and ancient customs, as to murder fines, pleas and other matters,” and that he would extirpate the unjust exactions introduced by the sheriffs and others. More specific promises made to the church, besides the large and dangerous promise that she should be “free.”54 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, rather than the king’s court, that the spirit of reforming legislation was once more active.55

The law-books or “Leges.”The best proof, however, of the perdurance of the Old English law is given by what we may generically call the law-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.56

Genuine laws of William I.In the first place, we may put on one side certain documents which profess to give us, not the old law, but the results of William’s legislation, the documents from which we have already extracted our account of his edicts. We probably have in its original form, that of a writ sent into the various counties, the ordinance which severed the ecclesiastical from the temporal courts.57 We have in English as well as in Latin the ordinance about criminal accusations brought by men of the one race against men of the other.58 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 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.59

The Quadripartitus.But we must pass to the attempts which were made to state the laga 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 his natural tongue. He may have been a secular clerk living at Winchester and employed in the king’s court or exchequer. He was closely connected by some tie or another with 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 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 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 antiquarian.60

Leges Henrici.Closely connected with the Quadripartitus is a far more important book, the so-called Leges Henrici. It seems to have been compiled shortly before the year 1118. After a brief preface, it gives us Henry’s coronation charter (this accounts for the name which has unfortunately been given in modern days to the whole book), and then the author makes a gallant, if forlorn, attempt to state the law of England. At first sight the outcome seems to be a mere jumble of fragments; rules brought from the most divers quarters are thrown into a confused heap. But the more closely we examine the book, the more thoroughly convinced we shall be that its author has undertaken a serious task in a serious spirit; he means to state the existing law of the land, to state it in what he thinks to be a rational, and even a philosophical form. But the task is 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 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 Goths’ version of the Theodosian Code.61 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, new in Europe: he was writing a legal textbook, a text-book of law that was neither Roman nor Canon law. To have thought that a law-book ought to be written was no small exploit in the year 1118.62

The Consiliatio and Instituta Cnuti.The writer of the Leges Henrici is in some sort the champion of West Saxon, or rather of Wessex law. Wessex is in his opinion the head of the realm, and in doubtful cases Wessex law should prevail.63 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 speech.64 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 kings.65

Les Leis Williame. Then we have another document which professes to give us the old laws, the laws which King Edward held and which 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. 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 cannot 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 difficulties.66

Leges Edwardi Confessoris. Lastly, we have a book written in Latin which expressly purports to give us the law of Edward as it was stated to the Conqueror in the fourth year of his reign by juries representing the various parts of England.67 However, the purest form in which we have it speaks of what was done in the reign of William Rufus,68 and probably was compiled in the last years of Henry I.69 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.70 He professes to hate the Danes of the past and the Danelaw. According to him, William, being himself of Scandinavian 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 law-books.71 In the thirteenth century it was venerable; even Bracton quoted from it.72 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, probably some man of Henry I.’s day, would have liked those statements to be true.73

Character of the law disclosed by the Leges.The picture that these law-books set before us is that of an ancient system which has received a rude shock from without 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 much 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 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.

Practical problems in the Leges.These law-books have, we may say, one main theme. It is a very old theme. An offence, probably some violent offence, 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 wíte and bót. 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, cannot 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 FitzOsbern, was that no knight should have to pay more than seven shillings for any offence.74 Becket asserted even in the king’s court that the heaviest amercement known to Kentish law was forty shillings.75 But the country was becoming covered with small courts; every one who could was acquiring or assuming sake and soke. The courts rose one above the other; the great old tribal customs were breaking up into multitudinous petty customs. This introduced new complexities. We can see that for the writer of the LegesHenrici the grand central problem of the law is the question, Who in the myriad of possible cases has sake and soke, the right to hold a court for the offender and to pocket the profits of jurisdiction? The claims of the lords, the claims of the church, the claims of the king are adding to the number of the various fines and mulcts that can be exacted, and are often at variance with each other. Let us suppose that a man learned in the law is asked to advise upon a case of homicide. Godwin and Roger met and quarrelled, and Godwin slew Roger. What must be paid; by whom; to whom? Our jurist is not very careful about those psychical elements of the case which might interest us, but on the other hand he requires information about a vast number of particulars which would seem to us trivial. He cannot 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 En gland 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 while there must be chaos and “unlaw”; every lord may assume what jurisdictional powers he pleases and will be able to find in the complicated tangle of rules some plausible excuse for the assumption. The Normans, hallowed and lay, have thrown themselves with all their native ardour into the warfare of litigation and chicane over rights which have Old English names; “nullus clericus nisi causidicus.”76

Custom of the king’s court.Only to one quarter can we look hopefully. Above all local customs rose the custom of the king’s court, “the tremendous empire of kingly majesty.”77 Of the law that this court administered we know little, only we may guess that in a certain sense it was equity rather than strict law. On the one hand, the royal tribunal 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 sense it was.78 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.

Royal justice.The future was to make the jurisprudence of the king’s court by far the most important element in the law of England, but we can hardly say that it was this during the reigns of the Norman kings. In the main that court was a court only for the great men and the great causes. It is true that these foreign kings did not allow their justiciary powers to be limited by any of those hedges which might have grown up in an unconquered country and confined the scope of royal justice to certain particular fields. The list of the “pleas of the crown” was long, disorderly, elastic;79 the king could send a trusted baron or prelate to preside in the county courts; he could evoke causes into his own court.80 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 shire-moots.81 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 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 court.82 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 cannot say that these justiciars were professionally learned in English law; but the king chose for the work trusty barons and able clerks, and some of these clerks, besides having long experience as financiers and administrators, must have had a tincture of the new canonical jurisprudence.83 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.84

CHAPTER V

Roman and Canon Law

Contact of English with Roman and canon law.In any case the restoration of order after the anarchy of Stephen’s reign and the accession to the throne of a prince who would treat England as the buttress of a continental empire must have induced a critical period in the history of English law. But we must add that in any case the middle of the twelfth century would 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.

Revival of Roman law.We have told above how Irnerius taught at Bologna.1 Very soon a school had formed itself around his successors. The fame of “the four doctors,” Bulgarus, Martinus, Jacobus, Hugo, had gone out into all lands; the works of Placentinus were copied at Peterborough. From every 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 law.2 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.

Cosmopolitan claims of Roman law.The keenest minds of the age had set to work on the 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 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?3 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 canon law.Another body of jurisprudence was coming into being. From humble 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 Gratian.4 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 the DecretumGratiani, or yet more simply the Decretum.5 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 utriusque 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.

The Decretals.Gratian had collected decretals down to the year 1139. But the time had now come when the popes were beginning to pour out decretals for the whole of western Christendom in great abundance. Under Alexander III. and Innocent III. the flow was rapid indeed. From time to time compilations of these were made (compilationes antiquae) and Englishmen in Italy took part in this work;6 but they were all set aside by a grand collection published by Gregory IX. in 1234. This was an authoritative statute book; all the decretals of a general import that had not been received into it were thereby repealed, and every sentence that it contained was law. It comprised five books. In 1298 Boniface VIII. added to these the “Sext,” the Liber Sextus, a collection of those decretals issued since the Gregorian codification, which were to be in force for the future. Another collection of decretals known as the Clementines (they had proceeded from Clement V.) was added in 1317, and in 1500 the Corpus Iuris Canonici was completed by yet another collection—this had no statutory authority—known as the Extravagants; but by this time canon law had seen its best days. We must yet say a few more words of its vigorous maturity.7

The canonical system.It was a wonderful system. The whole of western Europe 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 proceeding.8 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 particular case.9 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 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 lawyer.10 During the time with which we are now dealing, the twelfth and thirteenth centuries, no English canonist attempts to write down the law of the English church, for the English church has very little law save the law of the church Catholic and Roman. When in the next century John de Athona wrote a commentary on the constitutions made by certain papal legates in England, 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 presbyterorum ordinandis vel non has eighteen chapters; nine of these are addressed to English prelates. The title De iure patronatus has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his way to Rome, he was like to be told by the pope that his doctrine 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 prescription.11

Relation of canon to Roman law.The relation between the two great systems was in the twelfth century very close. The canon law had borrowed its 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 I.’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 drawn up by some Italian; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop’s projected college of canons would be an injury to his cathedral monastery.12 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.13 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.

Roman and canon law in England.The history of law in England, and even the history of English law, could not but be influenced by them. Their action, however, hardly becomes visible until the middle of the twelfth century is at hand. If the compiler of the Leges Henrici adopts a sentence which can be ultimately traced to the Theodosian Code through epitomes and interpretations, if the compiler of the Leis Williame seems to have heard a few Roman maxims, all this belongs to the pre-scientific era.14 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 jurist.15 It is remarkable enough that within a century after Lanfranc’s death, within much less than a century after the death of Irnerius, a well-informed Norman abbot ascribed to them jointly the credit of discovering Justinian’s books at Bologna.16 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 law. Lanfranc’s pupil Ivo of Chartres, the great canonist, knew much Roman law17 and becomes of importance in English history; it was his legal mind that schemed the concordat between Henry I. and Anselm.18 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.19 When Stephen made his ill-advised attack on Roger of Salisbury and 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 pope.20 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 Gratian21 —imported from Italy one Vacarius.22 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 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 glosses.23 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 form itself, is not so plain, but is asserted by one who ought not to have made a mistake about such a matter.24 That Stephen endeavoured to silence him and to extirpate the books of civil and canon law we are told upon good authority.25 We are told also, and may well believe, that the royal edict was ineffectual. Further, we know that Vacarius wrote a book and have some reason for ascribing this to the year 1149; he wrote it for the use of poor students who could not afford to purchase the Roman texts. That book still exists. It might be described as a condensed version of Justinian’s Code illustrated by large extracts from the Digest.26 It is a thoroughly academic book, as purely academic as would be any lectures on Roman law delivered now-a-days in an English university. In what of it has been printed we can see no practical hints, no allusions to English affairs.27 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 evolving.28 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 disproved.29 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 1200;30 if so, he must have been a very young man when Theobald fetched him from Italy.31

Legists and canonists in England.From Stephen’s reign onwards, the proofs that Roman and canon law are being studied in England become more frequent. The letters 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 Savigny.32 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 elements.33 Maxims out of the Institutes or the Digest become part of the stock in trade of the polite letter writer, the moralist, and the historian. Manuscripts are being copied. Abbot Benedict of Peterborough has in his monastery the whole Corpus Iuris 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.34 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.35 It is plain that a flourishing school of Roman and canon law had grown up at Oxford.36

Scientific work in England.But the Italians had been first in the field and easily maintained their preeminence. During the rest of the middle ages hardly a man acquires the highest fame as legist or decretist who is not Italian, if not by birth, at least by education. 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 have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century.37 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 Richard’s viceroy and the true ruler of England. Even after his fall he was still the king’s chancellor.38 Another lawyer who for a while controls the destiny of our land is Cardinal Guala Bicchieri,39 but it were needless to say that he was no Englishman. Probably that one of our countrymen who gains most fame in the cosmopolitan study is Ricardus Anglicus.40 He has been somewhat hastily identified with Richard le Poore, who became Dean of Salisbury, Bishop of Chichester, of Salisbury, of Durham.41 In the next century the most prominent name is that of William of Drogheda, who taught at Oxford and wrote a Summa Aurea.42 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 célèbres, 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.43 Thomas of Marlborough, prior of Evesham, despite his having 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 Apostles.44 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 men who read the law of the church, will be simply Hostiensis.45 Edward I. had Franciscus Accursii at his side.46 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 civilian in England finds little to do.As to Roman law, it led to nothing. For a while in their enthusiasm men might be content to study for its own sake 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,47 and when we read how in 1234 our Henry III. ordained that the leges should no longer be taught in the London schools—probably this refers to the schools of St. Paul’s Cathedral—it is by no means certain that we ought not to connect this with a movement in favour of ecclesiastical reform, rather than with that “Nolumus leges Angliae mutare” which the barons were about to utter.48 Matthew Paris has handed down to us what purports to be the text of a papal bull which goes much further.49 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 do.50 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 law.51 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 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 like,52 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 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 province of ecclesiastical law.The demarcation of the true province of ecclesiastical law was no easy task; it was not to be accomplished in England, in France, in Germany, without prolonged struggles.53 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.54 But his own assertion all along had been that he was no innovator; and though the honours and dishonours of the famous contest may be divided, the king was left in possession of the greater part of the field of battle. At two points he had been beaten:—the clerk suspected of felony could not be sentenced by, though he might be accused before, a lay court; appeals to Rome could not be prohibited, though in practice the king could, when he chose, do much to impede them. Elsewhere Henry had maintained his ground, and from his time onwards the lay courts, rather than the spiritual, are the 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 jurisdiction.55

Matters of ecclesiastical economy.I. (a) In the first place, she claims an exclusive cognizance of all affairs that can fairly be called matters of ecclesiastical economy, the whole law of ecclesiastical status, the ordination 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 property.56 To start with, the majority of churches had been owned by the landowners who built them.57 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 with the right of patronage;58 and very soon we may find two prelates in litigation about an advowson before the royal justices.59 In this instance the clergy seem to have given way somewhat easily;60 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 statutes.61 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 poor or the maintenance of fabrics.62

Church property. (b) The ecclesiastical tribunals would much like to claim the decision of all causes which in any way concern those lands that have been given to a church, at all events if given by way of “alms.” Henry himself was willing to make what may seem to us a large concession at this point. If both parties agreed that the land had been given in alms, litigation about it was to proceed in the ecclesiastical forum; if they did not agree, then the preliminary question, which would decide where the case should be tried, was to be settled by the verdict of a jury. Here he was successful and much more than successful. The courts of his successors insisted on their exclusive right to adjudge all questions relating to the possession or ownership of land, albeit given in alms; the spiritual judges could in this province do no more than excommunicate for sacrilege one who invaded soil that had been devoted to God in the strictest sense by being consecrated.63

Ecclesiastical dues. (c) The courts Christian claimed the exaction of spiritual dues, tithes, mortuaries, oblations, pensions. The justice of the claim was not contested, but it was limited by the rule that a question about the title to the advowson is for the lay court. From century to century there was a border warfare over tithes between the two sets of lawyers, and from time to time some curious compromises were framed.64

Matrimonial causes. (d) More important is it for us to notice that the church claims marriage, divorce, and consequently legitimacy, as themes of ecclesiastical jurisdiction. This claim was not 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.65 As regards the inheritance of land, a matter which lay outside the spiritual sphere, the king’s courts would not accept this rule.66 The clergy endeavoured to persuade the lay power to bring its law into harmony with the law of the church, and then in the year 1236, as all know, the barons replied with one voice that they would not change the law of England.67 Thenceforward the king’s justices assumed the right to send to a jury the question whether a person was born before or after the marriage of his parents, and it might well fall out that a man legitimate enough to be ordained or (it may be) to succeed to the chattels of his father, would be a bastard incapable of inheriting land either from father or from mother. But except when this particular question about the retroactive force of marriage arose, it was for the ecclesiastical court to decide the question of legitimacy, and, if this arose incidentally in the course of a temporal suit, it was sent for trial to the bishop and concluded by his certificate.68

Testamentary causes. (e) Yet more important to us at the present day was 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 boundaries,69 and at last succeeds in compassing the whole law of succession to movables ab intestato. 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 sin,70 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 unconfessed.71 And so “the law of personal property” falls apart from “the law of real property” and we at this day are suffering the consequences.

Pledge of faith. (f) With great difficulty were the courts Christian prevented from appropriating a vast region in the province of contract. They claimed to enforce—at the very least by spiritual censures—all promises made by oath, or by “pledge of faith.” The man who pledges his faith, pawns his Christianity, puts his hopes of salvation in the hand of another.72 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.73 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 enormous sin by seeking a prohibition when he has promised not to seek one and may very properly be sent to prison.74 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 marriage.75

Correction of sinners. (g) There remains the indefinitely wide claim to correct the sinner for his soul’s health, to set him some corporeal penance. The temporal courts put a limit to this claim by asserting that, if the sin be also an offence which they can punish, the spiritual judges are not to meddle with it. There are some few exceptions; the bodies of the clergy are doubly protected; you may be put to penance for laying violent hands upon a clerk besides being imprisoned for the breach of the peace and having to pay damages for the trespass.76 But, even though this rule be maintained, much may be done for the correction of sinners. The whole province of sexual morality is annexed by the church; she punishes fornication, adultery, incest; and these offences are not punished by the king’s court, though the old local courts are still exacting legerwites and childwites, fines for fornication. So also the province of 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 defamed.77 Usury is treated as a mere sin while the usurer is living; but if he dies in his sin, the king seizes his goods.78 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 otherwise punish the heretic, it is not likely that they would have called in vain.79

Jurisdiction over clerks.II. (a) But the church had opened a second parallel. She 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 Christian.80 It should be well understood that “the benefit of clergy” as allowed by English law was but a small part of that general immunity from lay justice which was claimed for the ordained by canonists in England as well as elsewhere.81

Miserabiles personae. (b) On the continent of Europe the church often claimed as her own the suits of the miserabiles personae, as they were called, of widows and orphans.82 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.83

The sphere of canon law.Large then is the province of ecclesiastical law; but it might have been much larger. Despite the many advantages that Henry II. gave to his antagonists by his rages and his furies, he handed down to his successors a larger field of purely temporal justice than was to be found elsewhere.84 Even in Normandy Richard had to consign to the ecclesiastical forum all questions about broken oath or broken faith.85 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.

Influence of canon upon English law.The canon law begins to affect our temporal law sometimes by way of repulsion, sometimes by way of attraction. It is in opposition to “the canons and Roman laws”86 that (if we may so speak) our English law becomes conscious of its own existence. In the Constitutions of Clarendon we have our first authoritative redaction of hitherto unwritten customs. If our consuetudines are to prevail against the leges and canones, they must be accurately formulated and set in writing. The “Nolumus leges Angliae mutare” of 1236 is no announcement of 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 Bologna.87 But this is not all. In later days, in the fourteenth and fifteenth centuries, the canon law can be administered in England without influencing our common law. The king’s justices, the practitioners in the king’s court, are in all probability profoundly ignorant of the Digest and the Decretals. The learned doctors who practise before the episcopal tribunals are not so ignorant of the temporal law, for it sets limits to their sphere of action; still they would not profess themselves masters of it. But in the twelfth, and even in the thirteenth, century this was not so. Henry’s greatest, his most lasting triumph in the legal field was this, that he made the prelates of the church his justices.88 Nothing could be less true than that he quarrelled with the whole mass of bishops and clergy. No doubt his bestowal of the great places of the church upon men who had earned, or were to earn, them by fiscal and justiciary labours, has an evil side as well as a good. We are here concerned with its good side. English law was administered by the ablest, the best educated, men in the realm; nor only that, it was administered by the 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 “archjusticiars.”89 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 laymen.90 The 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 true.91 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.92 These royal clerks have two sides; they are clerks, but they are royal. It would not surprise us to discover that 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, fideiussoriam, iuratoriam, pignoraticiam” and the like;93 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.

English law administered by ecclesiastics.We attribute to these clerical justices in general no more than a superficial acquaintance with the canon law, an acquaintance with its main principles and with its methods. But this 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.

Nature of the canonical influence.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 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 Christian.94 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.”95 But in our lay courts a distinctive form is given to these rules by the mode of trial which prevails there, the trial by jury, and before long the canonist will hardly be able to understand the English lawyer’s doctrine of special pleas. The assize of novel disseisin is suggested by the actio spolii; but it is not the actio spolii. Our English law shows itself strong enough to assimilate foreign 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.

CHAPTER VI

The Age of Glanvill

The work of Henry II.The reign of Henry II. is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king.1 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, 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.

Constitutions of Clarendon.The first great legal monument of the reign is, however, no ordinance. In 1164, when the dispute with Becket was waxing 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 seals.2 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,Assize of Clarendon. he was again holding an assembly 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.Inquest of Sheriffs. In 1170 Henry instituted a grand inquiry into the conduct of the sheriffs whom he had removed from their offices. The instruction for this “Inquest of Sheriffs” we have: it is an early example of those articles of inquest by which, as time goes on, the whole machinery of justice is subjected to examination and amendment.Assize of Northampton. At Northampton in 1176 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 “most d’ancestor” which takes its place beside the “novel disseisin.”3 An Assize of Arms from 1181, an Assize of the Forest from 1184, an Ordinance regulating the collection of the Saladin Tithe from 1188, an Assize of Bread of an uncertain date,—these seem to complete the list of the ordinances that have come down to us.4 For the rest, we may draw some inferences from the sheriffs’ accounts recorded in the annual pipe rolls, from the works of Glanvill and Richard FitzNeal and from the stories told by the chroniclers.5

Henry’s innovations. The jury and the original writ.If we try to sum up in a few words those results of Henry’s reign which are to be the most durable and the most fruitful, we may say that the whole of English law is centralized 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 jury.6

Essence of the jury.The essence of the jury—if for a while we use the term “jury” in 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 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 gulf.7

Jurors, doomsmen and witnesses.If what we were seeking for were a court in which at the bidding of its president, of some national or royal officer, ealdorman or reeve, the inhabitants of a district, or some selected group, perhaps twelve, of such inhabitants, deemed the dooms, we should have no difficulty in discovering the origin of trial by jury. Everywhere we might find such courts, for during the earlier middle ages it is the exception, rather than the rule, that the judgment should be made by the lord or president of the court or by a group of professional justices. But what the jurors or recognitors of our twelfth century deliver is no judgment; they come to “recognize,” to declare, the truth: their duty is, not iudicia 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.

The jury a royal institution.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.

Origin of the jury.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.The Frankish inquest. 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 communal courts, knows but such antique modes of proof as the ordeal and the oath with oath-helpers. But the Frankish king has in some measure placed himself outside the formalism of the old folk-law; his court can administer an equity which tempers the rigour of the law and makes short cuts to the truth.8 In particular, imitating, it may be, the procedure of the Roman fiscus,9 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.

The jury in England.Such is now the prevailing opinion, and it has triumphed in this country over the natural disinclination of Englishmen to admit that this “palladium of our liberties” is in its origin not English but Frankish, not popular but royal. It is certain that of the inquest of office or of the jury of trial the Anglo-Saxon dooms give us no hint, certain also that by no slow process of evolution did the doomsman or the oath-helper become a recognitor. The only doubt that there can be is as to the jury of accusation, the jury as an organ of fama publica.

The twelve thegns.This species of the inquest is that which is the most likely to have penetrated beyond the limits of the empire, for within those limits it was adopted by the church for 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 Prüm 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 told.10 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 Æthelred the Unready, published, so it would seem, in the year 997 and applicable only to the Danish district.11 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 have here a law of any generality.12 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.13 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 cannot say a priori that there is only one possible origin for the jury, we cannot 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 disputed.14

The inquest in the Norman age.Hardly had England been conquered, before the sworn inquest of neighbours appeared as part of the system of government and royal justice. The great fiscal record known to us as Domesday Book was compiled out of the verdicts of juries.15 The king makes use of the same engine in his own litigation; he can bestow the right to make use of it upon favoured churches;16 he can direct its employment in any particular case.17 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 church of Ely on the day of the Confessor’s death are to declare their knowledge upon oath. This will be a verdict, not a judgment. The justices are to restore to the church, not all the lands that she had at the date thus fixed, but only such of them as no one claims under the Conqueror. A particular question, a question about possession at a given moment of time, is thus singled out as one that should be decided by a sworn inquest of neighbours.18 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 iudices 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.19

Henry’s use of the inquest.Under Henry II. the exceptional becomes normal. The 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.20

The assize utrum.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 God and the saints should come before her courts. This principle was hardly disputed in Stephen’s day; but of course in many cases the question would arise—“Is this land alms or is it lay fee?” To allow the case to go for good and all either to the temporal or to the spiritual forum, would be to beg this preliminary question. Church and state are at issue, and neither should be judge in its own cause. The voice of the countryside about this question—which can be regarded as a question of fact, “Lay fee or alms?”—may be listened to; it comes, so to speak, from the outside and will be impartial. At any rate, Henry in the Constitutions of Clarendon claimed as one of the ancient customs of the realm that such a question should be decided by the oath of an inquest in the presence of his justiciar.21 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 diocese.22 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.

The assize of novel disseisin.Some two years later, perhaps at the council held at Clarendon in the first months of 1166, Henry took a far more important step. He issued an ordinance and instituted a procedure: ordinance and procedure alike were known as the assize of novel disseisin (assisa novae disseisinae). At that council was published the edict known as the Assize of 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 tidings of men being amerced for disseisin “against the king’s assize”; from that moment onwards we get such tidings year by year.23

Import of the novel disseisin.Of this ordinance, which was in the long run to prove itself one of the most important laws ever issued in England, we have not the words. Bracton tells us that wakeful nights were spent over it,24 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.25

The grand assize.At some time or another in his reign Henry went further than this. He decreed that no man need answer for his free tenement without royal writ.26 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.”27 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.28 The ordinance that instituted the grand assize was a one-sided measure, a protection of possessors. The claimant had to offer battle; the possessor, if he pleased, might refuse battle and put himself upon the grand assize.

The assize of mort d’ancestor.Then to all seeming the council held at Northampton in 1176 instituted a second possessory assize, the assize of mort d’ancestor (assisa de morte antecessoris).29 Apparently we have the words whereby this was accomplished, though the practice of the courts soon left those words behind it. The principle of the novel disseisin is that one man, even though he claims and actually has the ownership of the land, is not to turn another man out of possession without first obtaining a judgment. The principle of the mort d’ancestor is that if a man has died in seisin, that is, possession of a tenement, and was not holding it as 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 of darrein presentment.Scarcely less important than litigation about land is litigation about the advowsons of churches. Henry has here asserted as against the church that such litigation belongs to a temporal forum, and as against the feudatories that it belongs to the king’s own court.30 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.31 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 neighbours is summoned to declare who it was that presented the last parson.32

Assize and jury.Thus the sworn inquest begins to make its way into our ordinary civil procedure. In a proprietary action for land or for advowson, the “tenant,” the passive party, may, rejecting battle, “put himself upon the grand assize of our lord the king,” and an inquest will then 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 of Henry II. as part of the usual machinery of civil justice. Already before the end of his reign it fills a large space in Glanvill’s text-book. The old modes of proof are not abolished; proof by battle we shall have with us until 1819,33 proof by oath-helpers until 1833;34 but from this moment onwards they are being pushed into the background.

The system of original writs.Closely connected with the introduction of trial by inquest 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 tenement in X since the king’s last journey into Normandy? At countless points an action thus begun will differ from a proprietary action for land begun by a writ of right; both of them will differ from an action of debt, and even between the several possessory assizes many distinctions must be drawn, in particular as to the number of “essoins,” excuses for non-appearance, that the litigants may proffer. Thus before the end of Henry’s reign we must already begin to think of royal justice—and this is becoming by far the most important kind of justice—as consisting of many various commodities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice; he must choose an appropriate writ and with it an appropriate form of action. These wares are exposed for sale; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vendor, he is a 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 officina 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.The accusing jury also has become part of the ordinary mechanism of justice. The first definite tidings that we get of it are somewhat puzzling. To all seeming Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere 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.35 Henry seems to be forcing this rule upon reluctant prelates, and at the same time to be asserting that it is an ancient rule. From this we may perhaps infer that the synodal jury, described to us by Regino of Prüm, had been known in Normandy—it may be, in England also—but that of late it had been thrust aside by a laxer procedure which was less fair to the laity. This part of the story must remain very obscure.36 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 his “turn” through the hundreds.37 Every time that the justices are sent on their rounds the king can at pleasure add to the list of questions that they are to put to the jurors; in the next century that list, the articles of the eyre (capitula itineris), will be long and will be constantly growing longer. Closely 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.

Structure of the king’s court.There can be no doubt that one result of these various measures was to increase at a rapidly accelerating rate the amount of judicial business that was transacted in the king’s name. The functions of his court were changed and a corresponding change in its structure became necessary. It was no longer to be an extraordinary tribunal, a court for great men, for great causes, for matters that concerned the king; it was to become an ordinary tribunal for the whole realm. Many difficulties, however, meet us if we attempt to define the structural changes.38 In the first place, we are tempted to use terms which are more precise than those that were current in the twelfth century. In particular we are wont to speak of the Curia Regis without remembering that the definite article is not in our documents. Any court held in the king’s name by the king’s delegates is Curia Regis. Thus the institution of what in course of time will be a new tribunal, a Court of King’s Bench or a Court of Common Pleas, may be found in some small rearrangement, some petty technical change, which at the moment passes unnoticed. In the second place, the form which his court shall take, the mode in which it shall do justice, these are matters for the king; he is very free to decide them from day to day as he pleases, and this by a few spoken words. In the third place, we have direct evidence that Henry tried experiment after experiment.39 He was keenly interested in 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 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 cannot decide are to be reserved for the king and his wise men.40 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 cannot 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.41

The central court.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.42 It can be distinguished from the courts held by the itinerant justices, for, though every such court is curia Regis, this is capitalis curia Regis.43 It can be distinguished from the exchequer, for, though it often sits at the exchequer, and though its principal justices will be also the principal barons of the exchequer,44 it has a seal of its own and may well sit away from Westminster, while the fiscal business could hardly be transacted elsewhere.45 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.46 Probably it is already getting the name of “the bench” and its justices are “justices residing at the bench.”47 Though it is curia Regis and capitalis curia Regis it is not necessarily held coram ipso Rege. Apparently the writs that summon litigants before it, bid them appear “before the king or before his justices,” that is to say, before the king if he happens to be in England and doing justice, and if not, then before his justices.48 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 cannot 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.

Itinerant justices.The visitation of the counties by itinerant justices has become systematic. From the early years of the reign we hear of pleas held on circuit by Richard Lucy the chief justiciar, by Henry of Essex the constable, and by Thomas Becket the chancellor. In 1166 the assize of Clarendon was enforced by a party of justices headed by Richard Lucy and Earl Geoffrey of Mandeville. In 1168 Richard of Ilchester, Guy the dean of Waltham, William Basset and Reginald Warenne visited most of the counties. In 1175 the north and east were perambulated by Ranulf Glanvill and Hugh of Cressi, the south and west by William of Lanvallei and Thomas Basset, while the king himself seems to have been journeying with other justices in his suite.49 In 1176 to execute the assize of Northampton eighteen justices were employed and the country was divided into six circuits; in 1179 twenty-one justices were employed and the country was divided into four circuits; indeed from 1176 onwards hardly a year went by without there being a visitation of some part of England. These itinerant justices seem to have been chiefly employed in hearing the pleas of the crown (for which purpose they were equipped with the power of obtaining accusations from the local juries) and in entertaining some or all of the new possessory actions. The court that they held was, as already said, curia Regis; but it was not capitalis curia Regis, and probably their powers were limited by the words of a temporary commission. They were not necessarily members of the central court, and they might be summoned before it to bear record of their doings;50 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 the king’s court.No judicial rolls of the reign have come down to us, but during the last years of it such records were being compiled.51 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 Leicester.52

Scenes in court.Another life-like, if not impartial, story tells of a great suit between the Abbot of Battle and the Bishop of Chichester, another of a similar suit between the Abbot of St. Albans and the Bishop of Lincoln. In both cases abbatial privileges were urged against episcopal rights; in both the bishop practically lost his cause; but in both papal claims were involved, and the king, who had no mind to break with the pope, succeeded in bringing about what was in form a compromise; in neither case therefore was a judgment pronounced. In the one,53 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 people.54 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 Lincoln55 was heard by the king in the chapel of St. Catherine at Westminster in the year 1163. He was surrounded by the prelates and nobles; no less than thirteen bishops were present. But again we see the king retiring to consult with a much smaller body, which consisted of the Earl of Leicester, 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 Solomon,56 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, Geoffrey Ridel, disturbed this private session, and suggested defects in the abbot’s title; the king turned him out of the room. The public session was resumed; the king delivered an opinion unfavourable to the bishop—“privileges prevail against prescription”57 —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.58 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.59 But even for ordinary writs men had to go abroad.

The Anesty case.The curious story told by Richard of Anesty has often been re-told.60 He was claiming as heir to his uncle certain lands of which Mabel of Francheville, whom he asserted to be illegitimate, was in possession.61 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 the army for the expedition to Toulouse; Richard had to go as 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 lands.62 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.63 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;64 quite willing on the other hand to confess that there were problems that he could not solve.65 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.

The Spanish suit.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. Yes, said the justiciar, we are quicker about our business than your bishops are. Very true, replied Map, but you would be as dilatory as they are if the king were as far away from you as the pope is from the bishops. Glanvill smiled.66 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.67 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 due.68 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 lawyers.69 This boast was not baseless: Henry II. had made it true.

Law and letters.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 had they been less able than they were. But they were able. We speak of such men as Richard of Ilchester, John of Oxford and Geoffrey 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 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 chronicler70 and Walter Map the satirist71 were among his itinerant justices. Law becomes the subject of literature in the Dialogue on the Exchequer and the treatise ascribed to Glanvill.

Richard Fitz Neal.The Dialogus de Scaccario is an anonymous book, but there can be little doubt that we are right in ascribing it to Richard Fitz Neal; that is to say, to Richard the son of that Nigel, Bishop of Ely, who was the nephew of Roger, Bishop of Salisbury, the great minister of Henry I.72 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 1198.73 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;74 he acted as a royal justice; he wrote a history of his own time, the lost Tricolumnis;75 but above all he was a financier and knew all that experience and tradition could teach about the history and practice of the exchequer. He seems to have set to work on his Dialogue in the year 1177, and to have finished it in 1179 or thereabouts, when already for twenty years he had been the king’s treasurer.76

Dialogue on the Exchequer.The book stands out as an unique book in the history of medieval England, perhaps in the history of medieval Europe. A high officer of state, the trusted counsellor of a powerful king, undertakes to explain to all whom it may concern the machinery of government. He will not deal in generalities, he will condescend to minute details. Perhaps the book was not meant for the general public so much as for the numerous clerks who were learning their business in the exchequer,77 but still that such a book should be written, is one of the wonderful things of Henry’s wonderful reign. We may safely say that it was not published without the king’s licence, and yet it exposes to the light of day many things which kings and ministers are 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 conceal; he could stand criticism; his will and pleasure if properly explained to his subjects would appear as reasonable, and at any rate would not be resisted.78 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 chess-board 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.

Ranulf Glanvill.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.

His life.Ranulf Glanvill79 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 famous law-suit.80 The shrievalty of Yorkshire was an office that Henry would not have bestowed upon an untried man; Glanvill held it for seven years. In 1174, being then sheriff of Lancashire and custodian of the honour of Richmond, he did a signal service to the king and the kingdom. At a critical moment he surprised the invading Scots near Alnwick, defeated them and captured their king. From that time forward he was a prominent man, high in the king’s favour, a man to be employed as general, ambassador, judge and sheriff. In 1180 he became chief justiciar of England, prime minister, we may say, and viceroy. Henry seems to have trusted him thoroughly and to have found in him the ablest and most faithful of servants. Henry’s friends had of necessity been Richard’s enemies, and when Henry died, Richard, it would seem, hardly knew what to do with Glanvill. He decided that the old statesman should go with him on the crusade. To Acre Glanvill went and there in the early autumn of 1190 he died of sickness.

Tractatus de Legibus. Whether he wrote the book that has long borne his name is a doubtful question. Some words of the chronicler Roger Hoveden, his contemporary, may mean that he did write it; but they are obscure words.81 On the other hand, the title which it generally bears in the manuscripts seems to imply that he did not write it. It is called “A Treatise on the Laws and Customs of England composed in the time of King Henry the Second while the honourable (illustris vir) Ranulf Glanvill held the helm of justice”; but we cannot be certain that this title is as old as the book. Such a title would sufficiently explain the fact that in the thirteenth century the book was already known as the “Summa quae vocatur Glaunvile.”82 From internal evidence we infer that it was written before Henry’s death, that is before the 6th of July, 1189, and yet that it was not completed before the month of November, 1187.83 Certainly we cannot say that Glanvill was incapable of writing it, for, though a book written by a layman would at this time have been an extremely rare thing, we know that Glanvill was not illiterate and could pass remarks on the illiteracy of the English gentry.84 It is a more serious objection that during the stormy last years of Henry’s reign the faithful and hardworked justiciar can have had but little leisure for writing books.85 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 cannot 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.86 The question is interesting rather than important, for, though we would gladly know the name of the man who wrote our first classical text-book, it is plain that he was one who was very familiar with the justice done in the king’s court during the last years of Henry II. We may go further, we may safely say that it was not written without Glanvill’s permission or without Henry’s.

Roman and canon law in the Tractatus.The writer knew something of Roman and of canon law. Perhaps he had read the Institutes; probably his idea of what a law-book should be had been derived from some one of the many small manuals of romano-canonical procedure that were becoming current.87 He does not however adopt the arrangement of the Institutes as the plan of his treatise, and he cannot have followed any foreign model very far. The first sentences of his book are a good example of his method:—“Of pleas some are civil, some are criminal. Again, of criminal pleas some pertain to the crown of our lord the king, others to the sheriffs of the counties. To the king’s crown belong these: the crime which in the [Roman] laws is called crimen laesaemaiestatis, —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.88 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 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 dilemmatic. We have to consider—for naturally procedure is placed in the forefront—how an action is carried on. The defendant is summoned. Either he appears or he does not appear. If he does not appear, either he sends an excuse or he sends none. If he sends an excuse, it must be of this kind or of that:—and so forth. And at every turn the writer has to consider the wording of those royal writs that are becoming the skeleton of English law. Substantive law comes in incidentally, and we are allowed to see that some very elementary problems are still unsolved, for example, that simple problem in the law of primogenitary inheritance which on King Richard’s death will be raised between John and Arthur.89 Again, there is a great deal of customary law administered in the local courts of which he professes his ignorance.90 Old rules about wer and wíte and bót 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.91 Someone was at pains to translate it from Latin into French.92 A version of it known as Regiam Maiestatem became current in Scotland.93

English and continental literature.We may fairly say that under Henry II., England takes for a short while the lead among the states of Europe in the production of law and of a national legal literature. No other prince in Europe could have enforced those stringent assizes, and he could not have enforced them in all of his continental dominions. The most in the way of legislation that a king of the French could do, the most that an emperor could do in Germany, was to make for the maintenance of the peace rather a treaty with his vassals than a law for his subjects.94 No one had been legislating since the last Carolingians issued the last capitularies; law had been taking the form of multi-tudinous 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 cannot call Glanvill’s treatise the earliest text-book 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.95 Moreover it is noticeable that in France the provinces which are the first to come by written statements of their law are those which have been under Henry’s sway. Foremost stands Normandy, which in or about the year 1200 has already a brief written custumal, Normandy where 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 Anjou.96

The limit of legal memory.It is a well-known doctrine not yet obsolete among us that 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.97 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 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 constitution has no longer to complain of a dearth of authentic materials; soon he is overwhelmed by them.98

Richard’s reign and John’s.Richard’s reign, despite the exciting political struggles which filled its first years, was on the whole a time of steady if oppressive government, and the same may be said of so much of John’s reign as had elapsed before he quarrelled with the church. The system created by Henry II. was so strong that it would do its work though the king was an absentee.The central court. Term 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.99 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.100 Another layman who comes to the front as a great judge is Simon Pateshull;101 he may well have been the father of the yet more celebrated Martin Pateshull whom Bracton revered.102 Already in 1202 the king’s justices are officially styled “justices learned in the law.”103 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. Mère Église, 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 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 Westminster.104 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 justices.The counties also were visited from time to time by itinerant justices. Apparently they were sometimes armed with ampler and sometimes with less ample powers. There was a great eyre in 1194, and the articles issued to the justices on that occasion are the most important edict of the period.105 There was little that we could call legislation;Legislation. an ordinance of 1195 enforced the ancient rules for the pursuit of malefactors;106 in 1197 an assize of measures was issued,107 in 1205 an assize of money.108 Richard’s curious laws for the fleet of crusaders, under which thieves are tarred and feathered, deserve a passing word,109 and ordinances of John’s reign began the extension of English law over those parts of Ireland which were subject to his power.110 But it was rather by decisions of the courts and by writs penned in the chancery that English law was being constructed. A comparison of a collection of formulas which Henry III. sent to the Irish chancery in 1227 with Glanvill’s treatise shows us that the number of writs which were to be had as of course, had grown within the intervening forty years.111 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.112 As yet there would be no jealousy between the justices and the chancellor, nor would they easily be induced to quash his writs.

The Great Charter.It is not for us here to relate the events which led to the exaction and grant of the Great Charter, to repeat its clauses, or even to comment on all the general characteristics of that many-sided instrument. In form a donation, a 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.113 Of course it is not long when compared with a statute of the eighteenth century; more words than it contains have often been spent upon some trifling detail. But, regard being had to its date, it is a lengthy document.114 Every one of its brief sentences is aimed at some different object and is full of future law. The relative importance of its various clauses historians will measure by various standards. It is a great thing that the king should be forced to promise that no scutage shall be levied save by the common counsel of the realm, and that an attempt should be made to define the national assembly.115 It is a great thing that he should be forced to say, “No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any wise destroyed, save by the lawful judgment of his peers or the law of the land.”116 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.117 Such provisions can be enforced by courts of law, which can hardly enforce against the king his covenant that he will not sell or delay or deny justice, and that he will appoint as judges only those who know the law.118

Restorative character of the charter.On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined 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 reign.119 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 them.120 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 cannot be fulfilled.121 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 principle which they cannot openly attack.122 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 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 foreigner.123 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 law.124

CHAPTER VII

The Age of Bracton

Reign of Henry III.The reign of Henry III. (1216–72) is in the history of 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 idea of law.Our English lawyers have no philosophy of law, nor have they pursued very far the question, How does law, or a law, come into being? The opening chapters of Justinian’s Institutes were known. The sentences which define iustitia, iurisprudentia, ius naturale, iusgentium, ius civile, and so forth, were copied or imitated; but, any real knowledge of Roman history being still in the remote future, these sentences served as a check upon, rather than as an incentive to, rational speculation. In practice there is no careful discrimination between ius and lex; the whole mass of legal rules enforced by the English temporal courts can be indicated by such phrases as ius regni,1lex regni,2lex terrae,3ius et consuetudo regni,4lex et consuetudo, leges et consuetudines, lei de la terre, lei et dreit de la terre.5 Of course ius, lex and consuetudo are not in all contexts exactly equivalent words; ius and the French dreit often stand for “a right”;6lex and lei are technically used to signify the various modes of proof, such as the oath, the ordeal, the judicial combat.7 Glanvill and Bracton make some apology for giving the name leges to the unwritten laws of England;8 Bracton can upon occasion contrast consuetudo with lex.9 Of course too it is necessary at times to distinguish a new rule lately established by some authoritative act, from the old rules which are conceived as having been in force from time immemorial. The rule in question has its origin in a royal decree or edict, in a novella constitutio of the princeps,10 in “provisions” made by the king with the common counsel of his prelates and nobles, in an assize, or when we speak in English in an “isetnysse”11 —the word “statute” is hardly yet in common use12 —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.13 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 law.14 The king without the consent of a national assembly may issue new writs which go beyond the law, but not new writs which go against the law.15

Common law.The term common law (ius commune, lex communis, commun dreit, commune lei) is not as yet a term frequent in the mouths of out 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 church.16 In 1218 papal delegates report that the Bishop of Salisbury asserts a right to the church of Malmesbury both under the common law and by virtue of a papal privilege.17 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.18 From the ecclesiastical it would easily pass into the secular courts. A Bishop of Salisbury in 1252 tells the pope how, acting as a papal delegate, he has decided that the common law makes in favour of the rector of one church and against the vicar of another. The common law of which he speaks is the common law of the catholic church; but this bishop is no other than William of York, who owes his see to the good service that he has done as a royal justice.19 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 realm.20 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, especialté).21 When Bracton speaks of common law or common right—and this he does but very rarely—it is to distinguish from rights which have their origin in some specially worded contract or donation, those rights which are given to all men by the law of the land.22 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.”23

Statute law.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 curiosities.24 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.The charters. Important changes were made when it was reissued in 1216; other important changes were made in 1217, and a 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 times.25 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, irrepealable law. In 1253 with solemn ceremonial the anathema was launched, not merely against all who should break the charter, but also against all who should take any part whatever, even the humble part of mere transcribers, in making or promulgating or enforcing any statutes contrary to the sacred text.26 This theoretical sanctity and this practical insecurity are shared with “the Great Charter of Liberties” by the Charter of the Forest, which was issued in 1217.

Provisions of Merton, Westminster and Marlborough.The first set of laws which in later days usually bears the name of “statute” is the Provisions of Merton issued by the king with the consent of the prelates and nobles in 1236 on the occasion of his queen’s coronation: a few brief clauses amend the law about divers miscellaneous matters.27 From the time of storm and stress we have the Provisions of Westminster to which the king gave a reluctant consent in 1259.28 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 Marlborough.29 These four documents, the two Charters, the Provisions of Merton and of Marlborough, are the only documents of Henry’s reign which are generally regarded in after ages as parts of the written law, though to these we may perhaps add the Dictum of Kenilworth issued in 1266 (an essentially temporary provision relating to the punishment of the insurgents),30 and a writ of 1256, which has sometimes been dignified by the title “the Statute of Leap Year”; it deals with a small matter, the computation of the “excrescent” day of the bissextile.31 But it is only in retrospect that the quantity of legislation that there has been appears so small. As yet there is no easily applicable external test by which we can distinguish the solemn statute from the less solemn ordinance. From Henry’s reign we have neither a “statute roll” nor any “rolls of parliament”; and we have no reason to believe that any such records were kept.32 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.33

Ordinance and Statute. And if merely formal tests fail us, so also will more material tests. Of course we cannot in dealing with Henry’s day insist that a statute must be enacted with the consent of the three estates of the realm; we may be certain that the third estate was not represented at Merton, and may gravely doubt whether it was represented at Marlborough. On the other hand, we may take it as generally admitted that the king cannot 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 counsellors.34 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 1243.35 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 baron-age.36 But between large changes and small, between changes and ameliorations, between laws and rules of procedure, no accurate lines could be drawn.

The king below the law.That the king is below the law is a doctrine which even a royal justice may fearlessly proclaim.37 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 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.38 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.39 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 admitted.40 For a while men speculate as to whether in an extreme case the Earl of Chester as count of the palace may not have some coercive power over the king.41 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.42 But there is no established orderly method whereby this can be accomplished, and the right to restrain an erring king, a king who should be God’s vicar, but behaves as the devil’s vicar,43 is rather a right of revolution, a right to defy a faithless lord and to make war upon him, than a right that can be enforced in form of law. The result of the barons’ war is to demonstrate that though the king is not above the law, the law has no means of punishing him, and no direct means of compelling him to make redress for the wrongs that he has done.

Unenacted law and custom.The unenacted part—and this is the great bulk—of the law seems to be conceived as custom (consuetudo). The most important 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 similar.44 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 cannot 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 Raleigh.45 On rare occasions specific precedents (exempla) may have been alleged in court;46 in Edward I.’s day the pleaders are already citing and “distinguishing” previous cases;47 but as a general rule the judges, assisted by clerks, who were on their way to become judges, would regard themselves as having an implicit knowledge of the consuetudo curiae and would not feel bound to argue about past cases. The justices of the bench would often be fully justified in behaving thus; many of them were experienced men who had worked their way upwards through all the ranks of the king’s court and chancery. And so even the knights who were employed to take assizes in their shires, though they had read no law, would believe that they knew the law and custom applicable to the cases that came before them. Every man who does his duty knows a great deal of law and custom: the difficulty is to persuade him that he does not know everything.48

Local customs.The custom of the king’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 them.49 We see no signs of any consciously conceived desire to root them out.50 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 rules.51 A heavy burden of proof is cast upon those who would apply other rules; they must be prepared to show not merely that a local tradition is in their favour, but that this tradition has borne fruit in actual practice and governed the decisions of the local courts.52 The instances that we get of customs peculiar to counties or other wide tracts of land, such as the episcopal barony of Winchester53 or the honour of Britanny,54 are of no great importance. The law about frankpledge, the law about the presentment of Englishry, may be somewhat differently understood in the various parts of England; and in the north there prevail certain forms of land tenure which are hardly to be found in the south:—but this is a small matter. The county courts are held under the presidency of sheriffs who will ask advice from Westminster when difficult cases come before them.55 Every manor will indeed have its own customs, and to the unfreemen 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 justices.56 When the time comes for the king’s courts to protect that villein tenure which has become copyhold tenure, there will be little difficulty about the establishment of a set of uniform rules which will serve as a “common law” for copyholds. Within the walls of a chartered borough peculiar customs can grow vigorously, for the charter will serve to protect them against the meddling of the king’s justices. The consuetudo of the borough will be the lex of the borough, and sometimes it will be solemnly committed to writing.57 But even here there is less variety than we might have looked for. The aspiring town was often content to receive as a privilege the custom of some famous borough, Winchester or Bristol or Oxford, and thenceforward in case of doubt it would send to its mother town for an exposition of the rules that should guide it.58 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 customs.Kent is somewhat of an exception; it has a considerable body of customs; there is a lex Kantiae.59 In Edward I.’s day a written statement of these customs was sanctioned by the king’s justices in eyre.60 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 other.61 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 freemen; indeed in Edward I.’s day it is said that every one born in Kent is born free.62 The customs of Kent are, at least for the more part, the customs of these gavelkinders; customs which fall within the province of private law, which regulate the wife’s dower and the husband’s curtesy, which divide the dead tenant’s land among all his sons, showing however a certain preference for the youngest, which determine the procedure that the lord must adopt if his rent be in arrear, and which, contrary to the general law, allow the sons of the hanged felon to inherit from him. Thus the task of 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 Danelaw.63 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 freemen. 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 Conquest.64 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 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 gavelkinders are prosperous; they purchase a royal charter from Henry III.65 There is general prosperity in Kent: even the knights of the county are anxious that the lex Kantiae should be observed.66 All classes in the county seem to be bound together by a tie of local patriotism. They feel that they are better off than other Englishmen are.67 In course of time there must be “treatises on gavelkind” and learned books on “the tenures of Kent,” for when once a district has established an exemption from certain of the ordinary rules of law, the number of the rules from which it is exempt will be apt to grow.68 But on the whole, the brief Kentish custumal of the thirteenth century is only a small exception to the generality of the common law.

Englishry of English law.English law was by this time recognized as distinctively 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, precedents.69 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.70 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 England.71 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 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 final.72 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.73

Equity.Of “equity” as of a set of rules which can be put beside the rules of “law,” or of courts whose proper function is the 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 aequitas and rigor iuris is already a part of what passes as philosophical jurisprudence, and secondly, that our king’s court is according to very ancient tradition a court that can do whatever equity may require. Long ago this principle was asserted by the court of Frankish kings and, at all events since the Conquest, it has been bearing fruit in England.74 It means that the royal tribunal is not so strictly bound by rules that it cannot defeat the devices of those who would use legal forms for the purposes of chicane; it means also that the justices are in some degree free to consider all the circumstances of those cases that come before them and to adapt the means to the end. In the days of Henry II. and Henry III. the king’s court wields discretionary powers such as are not at the command of lowlier courts, and the use of these powers is an exhibition of “equity.” Often on the plea rolls we find it written that some order is made “by the counsel of the court” (de consilio 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 action.”75 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 courts.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.76 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 cannot 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.

The exchequer.At what we may call an early time the exchequer ceased to be a phase of the general governing body of the realm, and became a department, with a seal and many records of its own, a financial department.77 In Bishop Richard’s Dialogue we still see all the great ones of the kingdom seated round the chess-board. The chief justiciar is there and the chancellor of the realm. Gradually they withdraw themselves from the ordinary work of the board, though they may attend it on special occasions. The treasurer becomes its president; its seal is kept by the chancellor of the exchequer, an officer who first appears in Henry III.’s reign, and the writs that it issues are tested by the senior baron;78 as yet there is no “chief baron.”79 From the beginning of the reign onwards men are definitely appointed to be barons of the exchequer.80 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 barons.81

Work of the exchequer.The exchequer is called a curia.82 In our view it may be a compound institution, in part a judicial tribunal, in part a financial bureau. The process which in course of time will divide a great “government office” known as the treasury from the court of law held before a chief baron and other barons, has not as yet gone far. The duty of issuing the king’s treasure is performed by the treasurer with the assistance of the deputy chamberlains—already the chamberlainships have become hereditary sinecures83 —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 every payment of an annual salary he requires such a warrant from above.84 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 minister.85 The main work of the court or board over which he presides is that of collecting the king’s revenue. It receives and audits the accounts of the sheriffs and other collectors; it calls the king’s debtors before it, hears what they have to say, investigates the truth of their allegations, grants them an acquittance or issues process against them, “according to the customs and usages of the exchequer.” We may perhaps call it an administrative tribunal. If questions of fact or questions of law arise, it ought to judge impartially between the king and his subjects; but still its duty is to get in what is due to the king, and to do this spontaneously without waiting for any external impulse. It is a revenue board which hears and decides. Then also it is often empowered to give relief against the king. Not that a subject can bring an action against the king either here or elsewhere, but when a man thinks that he has a claim against the king, either in respect of some 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 right.86 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 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 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 victory belongs to a later time than that of which we are speaking.87

The chancery.Men are beginning to speak of the chancery as a curia;88 but even in Edward I.’s reign it is not in our view a court of justice; it does not hear and determine causes. It was a great secretarial bureau, a home office, a foreign office and a ministry of justice. At its head was the chancellor, who, when there was no longer a chief justiciar of the realm, became the highest in rank of the king’s servants. He was “the king’s secretary of state for all departments.”89 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 world over.90 Very little was done by the king that was not done by a document bearing the great seal; it was “the key of the kingdom.”91 The exchequer and the two benches had indeed seals and could issue writs running in the king’s name, writs, for example, summoning juries, coercing contumacious litigants or carrying judgments into effect; but the province of such writs was not very wide, and it was a very general rule that no action could be begun in the king’s courts and that no action touching freehold could be begun anywhere without an “original” or (as we might say) “originating” writ, which proceeded from the chancery and served as the justices’ warrant for entertaining that action.92 During the course of Edward’s reign writs under the privy seal became common; but the king was constrained to promise that no writ which concerned the common law should issue under that seal,93 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 will.94 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 messages.95 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.96 In its final form almost every message, order or mandate that came, or was supposed to come, from the king, whether it concerned the greatest matter or the smallest, whether addressed to an emperor or to an escheator, whether addressed to all the lieges or to one man, was a document settled in the chancery and sealed with the great seal. Miles of parchment, close rolls and patent rolls, fine rolls and charter rolls, Roman rolls, Gascon rolls and so forth, are covered with copies of these documents,97 and yet reveal but a part of the chancery’s work, for no roll sets forth all those “original” writs that were issued “as of course.”98

The original writs.The number of writs which were issued as of course for the purpose of enabling those who thought themselves wronged to bring their cases before the law courts, increased rapidly during the reign of Henry III. A “register of original writs” which comes from the end of that period will be much longer than one that comes from the beginning.99 Apparently there were some writs which could be had for nothing; for others a mark or a half-mark would be charged, while, at least during Henry’s early years, there were others which were only to be had at high prices. We may find creditors promising the king a quarter or a third of the debts that they hope to recover.100 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 drawn.101 That the poor should have their writs for nothing, was an accepted maxim.102 The almost mechanical work of penning these ordinary writs was confided to clerks who stood low in the official hierarchy, to cursitors (cursarii); it consisted chiefly of filling with names and sums of money the blanks that were left in the forms that they found in their registers; but some clerk of a higher grade seems to have been responsible for every writ.103 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 freely.104 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 court.105 For some years before the barons’ war Henry attempted to govern without a chancellor or with a chancellor who was such only in name;106 his chancery was no serious obstacle to his will and pleasure, though now and again even a vice-chancellor might resign rather than set the seal to a document that he regarded as illegal.107 Complaints against new and unaccustomed writs grew loud.108 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.109 Under Edward I. two different causes tended to give stability and finality to the cycle of original writs. On the one hand, it became apparent that to invent new remedies was to make new laws, and events were deciding that only in a parliament of the three estates could new laws be made: even when the king was concerned, the list of actions was to be a closed list.110 On the other hand, chancery and chancellor had grown in dignity. There were great chancellors who were usually the king’s first ministers. The chancery was by this time independent of the “benches.” The days when the chancellor would often sit among the justices were passing away, the days for stiff official correspondence between the courts and the chancery had come.

The chancery not a tribunal.It is but rarely that we hear of the chancery or the chancellor performing any work that can fairly be called judicial. The issuing of the “original” writs was not judicial work, though 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.111 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.112 In the latter half of the thirteenth century a subject who has aught against the king has, at least as a general rule, but one course open to him. He presents a petition to the king or the king and his council. This may come before the king himself, or before a full meeting of the council, or before a select body of councillors assigned to deal with such petitions as can be easily disposed of. If he gets a favourable answer, this—since as yet he has shown but some plausible case for relief—will in general send him before some tribunal 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.113

The two benches. The king’s court—to say no more of the exchequer and the chancery—has been slowly breaking up into three tribunals; there is a Common Bench, a King’s Bench, and a yet higher court, which in the days of Edward I. we may indifferently call the King in Council or the King in Parliament. A cleft began to appear when Henry II. in 1178 appointed certain justices to sit permanently in his court and hear the complaints of all men, but reserved the more arduous cases for himself and the wise men of the realm.114 It disappeared for a while under the absentee Richard; it reappeared under John, who travelled through the country with justices in his train while other justices remained on “the bench” at Westminster.115 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 rolls.116 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 place.117 Thus “the bench” has become the appropriate tribunal for ordinary civil suits between subject and subject. The complementary rule, which assigns the “pleas of the crown” to the court held coram rege, seems to grow up gradually and not to be the outcome of legislation.118 The court held coram rege is superior to, for it can correct the errors of, “the bench.”119 Then 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.120

Council, parliament and benches.We have to state the matter thus, for the court that during Henry’s reign is held coram rege breaks into segments. For 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 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 roll.121 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 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 open.122

Itinerant justices.As to the courts held in the king’s name by men who are 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 III.’s reign is done very frequently; generally it is done by some three or four knights of the shire, and thus, long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice.123 In order to dispose of the possessory assizes of novel disseisin and mort d’ancestor, a vast number of commissions were issued in every year. Early in Henry’s reign this work was often entrusted to four knights of the shire; at a later time one of the permanent justices would usually be named and allowed to associate some knights with himself. Apparently a justice of assize had often to visit many towns or even villages in each county; his work was not all done at the county town.124 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.125 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 counties.126 Then, again, the justices are provided with a long list of interrogatories (capitula itineris) which they are to address to local juries. Every hundred, every vill in the county must be represented before them. These interrogatories—their number increases as time goes on—ransack the memories of the jurors and the local records for all that has happened in the shire since the last eyre took place some seven years ago; every crime, every invasion of royal rights, every neglect of police duties must be presented.127 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 amercements.128 Three or four of the permanent judges will be placed in the commission; with them will be associated some of the magnates of the district; bishops and even abbots, to the scandal of strict churchmen, have to serve as justices in eyre.129 Probably it was thought expedient that some of the great freeholders of the county should be commissioned, in order that no man might say that his judges were not his peers. An eyre was a sore burden; the men of Cornwall fled before the face of the justices;130 we hear assertions of a binding custom that an eyre shall not take place more than once in seven years.131 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 sight.132

Triumph of royal justice.The king’s courts have been fast becoming the only judicial 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 hear some bad stories of corrupt and partial judges,133 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 cannot ascribe altogether to the ambition or greed of the lawyers at Westminster. Of his own free will the small 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;134 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.135 Men were fast coming to the opinion that it ought to be, in Bentham’s phrase, “omnicompetent,” and 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 rules.136 But still this principle is at work: it is the king’s business to provide a competent remedy for every wrong.137

The judges.The number of the justices whom Henry kept in his pay was never large. If there were some three or four in his train to hold the pleas coram rege, some four or five at “the bench,” and three or four barons in the exchequer, this was enough. During the last years of the reign “the bench” seems to have but three, or even but two, occupants.138 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 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.139 With him began the new line of the chief justices of England who are but the presidents of a law court, and about the same time the presiding judge at “the bench” or “the common bench” began to be formally styled its chief justice.140 It was no long er expected of the judge that he should be a statesman, or of the statesman that he should be expert in the law. We hear indeed complaints that the king puts unworthy and ignorant men upon the bench, men who will do just what he wants; but some of the judges of Henry’s reign were known to their contemporaries merely as great lawyers and seem to have earned the respect of all parties in the state.141

Clerical justices.Many of them were ecclesiastics; among such we may reckon Martin Pateshull, William Raleigh, Robert Lexington, William of York, Henry of Bratton. Even Stephen Segrave seems to have had enough of the clerk about him to serve as a shield against temporal justice.142 Bishops no longer steadily sat in the law courts, though they might now and again appear as justices in eyre; but canonries, deaneries and even bishoprics were still to be earned by good service on the bench; William Raleigh thus won the see of Norwich and William of York the see of Salisbury. However, all this was becoming somewhat scandalous; the clergy were being forbidden by the law of the church to study temporal law or decide temporal causes.143 Before the end of the reign the lay element among the king’s judges is beginning to outweigh the ecclesiastical; Thomas Multon and Roger Thurkelby are laymen who make names for themselves as learned justices;144 but even of Edward I.’s justices not a few were clerks. This is no small change; it means that the study of English law is 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 chancery.145 The change brought good with it and evil. Our judges became a little less dependent on the king than they had been; our law was protected against Romanism and our constitution against the monarchical doctrines that Romanism might have brought with it. On the other hand, law was divorced from literature; the age for law reports, for Year Books, had come; the age for a great exposition of English law had gone by. Happily in the fulness of the time the work had been done.

Bracton.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 briefly.146 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 barons, we cannot 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 book.His is an unfinished book; we do not know that it was 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 cannot always 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 head.147

Character of Bracton’s work.Romanesque in form, English in substance—this perhaps is the best brief phrase that we can find for the outcome of his labours; but yet it is not very good.148 He had at his command and had diligently studied the works of the famous Italian lawyer,Italian form. Azo of Bologna; he also made some use at first hand of various parts of the Corpus Iuris 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 cannot treat his book as a proof that such was the case in his own day.149 We do not know that any of his fellows had more than that superficial acquaintance with the law of the church which was common among ecclesiastics: they might be archdeacons, they might hope to be bishops, but the judicial functions of bishops and archdeacons were by this time commonly delegated to their professionally learned “officials.” 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 own.150 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.151

English substance.On the other hand, the main matter of his treatise is genuine English law laboriously collected out of the plea rolls of the 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 history in order to secure a triumph for English law.152 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 monarchy.153

Later law books.The book was successful. Some forty or fifty manuscripts of it will seem a sufficient body of witnesses to attest its popularity, especially when we remember that the text of some of our 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 it.154 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.155 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.156 The so-called “Britton” has better claim to be called an original work. It is in French, and the whole law has been put into the king’s mouth. It must have been 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 I.’s chief justices. This however is not the place in which to speak at any length of these products of the Edwardian age; but to name them has been necessary since sometimes they will help us to discover the law of Henry III.’s reign when Bracton fails us. After all that has been done towards 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 books of Henry’s reign.Of other law books of Henry’s reign little is known and little need be said; the gap between them and Bracton’s Summa is immense. 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 in the king’s court which belongs to Henry’s time,157 and from that time we begin to get precedents for the use of pleaders in the local courts, conveyancing precedents, and precedents for manorial accounts;158 also brief disquisitions on rural economy which throw light on legal arrangements.159 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 courts,160 while much may be learnt from the manorial surveys or “extents,” numerous examples of which have been preserved in the monastic cartularies and elsewhere.

The legal profession. Before the end of the thirteenth century there already exists 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.161 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 cannot state his own case in due form of law,Pleaders. he is not entitled to an answer. Still in yet ancient days a litigant is allowed to bring into court with him a party of friends and to take “counsel” with them before he pleads. In the Leges Henrici it is already the peculiar mark of an accusation of felony that the accused is allowed no counsel, but must answer at once; in all other cases a man may have counsel.162 What is more, it is by this time permitted that one 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 disavow.163 The professional pleader makes his way into the courts, not as one who will represent a litigant, but as one who will stand by the litigant’s side and speak in his favour, subject however to correction, for his words will not bind his client until that client has expressly or tacitly adopted them. Perhaps the main object of having a pleader is that one may have two chances of pleading correctly. Even in the thirteenth century 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 blunder.164 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.165 Just because the pleader makes his appearance in this informal fashion, as a mere friend who stands by the litigant’s side and provisionally speaks on his behalf, it is difficult for us to discover whether pleaders are commonly employed and whether they are already members of a professional class. The formal records of litigation take no notice of them unless they are disavowed.166

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 (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 right of appointing an attorney, or rather, for the word attorney is hardly yet in use, a responsalis.167 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.168 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.169 In the communal courts a litigant could not appoint an attorney unless he had the king’s writ authorizing him to do so.170

Attorneys not professional.The attorneys of the period which is now before us do not seem to be in any sense “officers of the court,” nor do they as yet constitute a closed professional class. Probably every “free and lawful” person may appear as the attorney of another; even a woman may be an attorney,171 and a wife may be her husband’s attorney.172 A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally, however, as we look down the list of attorneys we see the same names repeating themselves, and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A change comes in Edward I.’s day which gives a new definiteness to the class of attorneys as well as to the class of counsellors.

Professional pleaders.Recurring for a moment to the class of counsellors, we 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 train.173 For his litigation in the ecclesiastical courts he naturally required professional aid, and he had it from Italian lawyers resident in 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.174 But even in the king’s court he was surrounded by friends and helpers and pleaders, and among them was Ranulf Glanvill.175 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 wishes.176 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.177 The only persons who are mentioned as learned in English law are the king’s justices,178 and they to all appearance have been selected, not out of a body of advocates seeking for employment from the general public, but from among the king’s civil servants, the clerks of his court and of his chancery and those laymen who have done good work in subordinate offices. However, when in his account of the year 1235 Paris tells us how Henry sought to crush the aged Hubert de Burgh with accusations, he represents Hubert’s faithful counsellor Lawrence of St. Albans as having to contend against “all the advocates of the bench whom we commonly call countors.”179 In 1268 “a countor of the bench” assaulted a justice of the Jews in Westminster Hall; his fellow countors interceded for him.180 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 distraint.181 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 “countor” is the temporal equivalent for the canonical advocate. In 1237 the legatine constitutions of Cardinal Otho had ordained that no one was to serve as an advocate in an ecclesiastical court, except in certain exceptional cases, until he had taken an oath before his bishop to do his duty and not to pervert justice.182 Thus a close body of professional advocates was formed, and this would serve as a model for a similar body of professional “countors.”

Regulation of pleaders and attorneys.Then in Edward I.’s day we see that the king has retained pleaders who are known as his servants or serjeants at law (servientes ad legem). Already in 1275 it is necessary to threaten with imprisonment “the serjeant countor” who is guilty of collusive or deceitful practice.183 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 from among the best, the most lawful and the most teachable, so that king and people might be well served. The suggestion was made that a hundred and forty of such men would be enough, but the justices might, if they pleased, appoint a larger number.184

The two branches of the profession.By this measure, which, however, may not have been the first of its kind, “both branches of the profession” were placed under the control of the justices, and apparently a monopoly was secured for those who had been thus appointed.185 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 antagonist.186 It is from 1292 that we get our first Year Book, and we see that already the great litigation of the realm, the litigation which is worthy to be reported, is conducted by a small group of men. Lowther, 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 justice,187 and in 1275 we find one William of Bolton practising in partnership with other pleaders before the court of the fair of St Ives.188 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.189

Professional opinion.So soon as there is a legal profession, professional opinion is among the most powerful of the forces that mould the law, and 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.190

Decline of Romanism.That the professional pleader of Edward I.’s day had learnt law as a science, had attended lectures or read books, we do not know; very probably his education had generally been of a purely empirical kind. Sometimes he was a legist. In 1307 a judge says to counsel, “Passeley, you are a legist and there is a written law which speaks of this matter, Cogi possessorem etc. ”191 A certain knowledge of, and reverence for, the broader maxims of “the written law” is apparent. “Volenti non fit iniuria,” “Melior est conditio possidentis,” “Res inter alios acta,” such phrases as these can be produced in court when there is occasion for them.192 They could be easily found; the Decretals of Pope Boniface VIII. end with a bouquet of these showy proverbs.193 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 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.194

Notaries and conveyancers.In England that Roman institution, the notarial system, never took deep root.195 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 stake.196 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 John of Bologna, who dedicated to Archbishop Peckham a collection of judicial precedents, destined—so its author hoped—to reform our slovenly insular documents.197 In later days there were always some apostolic notaries in England. In the 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.198 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 stringent forms, which they compel their English debtors to execute.199

Knowledge of the law.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 pleader.200 Even the writer of the Leges Henrici had observed that we better understand another person’s cause than our own.201 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 law in Wales.English law was already spreading beyond the bounds of England. In 1272 the time had almost come when Wales would be subjugated and Edward’s great Statutum Walliae,202 the most comprehensive code that any English legislator issues during the middle ages, would be promulgated. Meanwhile in the marches English and Welsh law had met; but the struggle was 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 kinsmen of the slain, and they ask that this ancient usage may be observed.203 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.204 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.

English law in Ireland.Into Ireland Englishmen have carried their own law. A smaller England has been created across the Channel, with chancery, exchequer, “benches,” council, sheriffs, coroners, all reproduced upon a diminished scale. Statutes and ordinances and “the register of original writs” were sent from England into Ireland; the king’s English court claimed a supremacy over his Irish tribunals, and multitudinous petitions from Ireland came before the English council at its parliaments.205 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 application of the system of “personal law.”206 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” fine.207

English and Scottish law.Whether the king of Scotland was in any degree subject to 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 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 En glish 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.208 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 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 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 law.209 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.210 Uniformity, if it cannot be evolved from within, must be imported from without. Thus in the end Roman law is received in Scotland as subsidiary and academic law.

Precocious maturity of English law.A comparison of the legal systems of various states as they were at some remote point of time will always be a difficult task, even for one who knows the history of each separate system. But if we could look at western Europe in the year 1272, perhaps the characteristic of English law which would seem the most prominent would be its precocity. Its substance was, to say the least, as 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 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 cannot 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.

Characteristics of English law.Uniformity is thus secured, and even a certain simplicity, for some parts of our common law, notably the law of status, must, if we have regard to continental systems, be called 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 primogenitary rules of inheritance are rapidly spreading downwards 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 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 cannot surmount. Archaic institutions which the rationalism of the thirteenth century had almost destroyed, wager of battle, wager of law, will live on until the nineteenth, moribund but mischievous. It may become an occult science, a black art, a labyrinth of which the clue has been lost.

But now, having brought down our general sketch of the growth of English law to the accession of Edward I., “the English Justinian,” we may turn to an examination of its rules and doctrines as we find them in the age of Glanvill and the age of Bracton.

[p. 38,] middle of page. As to the burh-geat (not burh-geat-setl) see W. H. Stevenson, E. H. R. xii. 489; Maitland, Township and Borough, 209.

[1 ] Æthelb. 1.

[2 ] Ihering, Vorgeschichte der Indoeuropäer; see especially the editor’s preface.

[3 ] The following summary has been compiled by the aid of Karlowa, Römische Rechtsgeschichte, 1885—Krüger, Geschichte der Quellen des römischen Rechts, 1888—Conrat, Geschichte der Quellen des römischen Rechts im früheren Mittelalter, 1889—Maassen, Geschichte der Quellen des canonischen Rechts, 1870—Löning, Geschichte des deutschen Kirchenrechts, 1878—Sohm, Kirchenrecht, 1892— Hinschius, System des katholischen Kirchenrechts, 1869 ff.—A. Tardif, Histoire des sources du droit canonique, 1887—Brunner, Deutsche Rechtsgeschichte, 1887— Schröder, Lehrbuch der deutschen Rechtsgeschichte, ed. 2, 1894—Esmein, Cours d’histoire du droit français, ed. 2, 1895—Viollet, Histoire du droit civil français, 1893.

[4 ] Krüger, op. cit. 198; Karlowa, op. cit. i. 736.

[5 ] Krüger, op. cit. 215; Karlowa, op. cit. i. 741.

[6 ] Krüger, op. cit. 226; Karlowa, op. cit. i. 752.

[7 ] Löning, op. cit. i. 195 ff.; Sohm, op. cit. 75. Löning asserts that in the intervals between the outbursts of persecution the Christian communities were legally recognized as collegia tenuiorum, capable of holding property. Sohm denies this.

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

[9 ] Sohm, op. cit. 378 ff.; Löning, op. cit. i. 423 ff.

[10 ] Dig. 1. 1. 1.

[11 ] The moot question (Krüger, op. cit. 203; Karlowa, op. cit. 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.

[12 ] Krüger, op. cit. 260; Karlowa, op. cit. i. 932.

[13 ] Gregorovius, History of Rome (transl. Hamilton), i. 85.

[14 ] Krüger, op. cit. 277 ff.; Karlowa, op. cit. i. 941 ff. It is thought that the original edition of the Gregorianus was made about ad 295, that of the Hermogenianus between 314 and 324. But these dates are uncertain. For their remains see Corpus Iuris Anteiustiniani.

[15 ] Brunner, op. cit. i. 32–39.

[16 ] Ibid. 38.

[17 ] Löning, op. cit. i. 44.

[18 ] Löning, op. cit. i. 97–98, reckons 68 statutes from 57 years (380–438).

[19 ] Hefele, Conciliengeschichte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7.

[20 ] Sohm, op. cit. 443: “Das ökumenische Koncil, die Reichssynode . . . bedeutet ein geistliches Parlament des Kaisertums.”

[21 ] 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 (ad 385) of Pope Siricius.

[22 ] Cod. Theod. 16. 1. 2.

[23 ] Löning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff.

[24 ] Löning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1.

[25 ] Löning, op. cit. i. 305; Hinschius, op. cit. iv. 794.

[26 ] Löning, op. cit. i. 64–94.

[27 ] Krüger, op. cit. 285 ff.; Karlowa, op. cit. i. 944.

[28 ] The Breviary of Alaric is a different matter.

[29 ] Bury, History of the Later Roman 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.”

[30 ] Zeumer, Leges Visigothorum Antiquiores, 1894; Brunner, op. cit. i. 320; Schröder, op. cit. 230.

[31 ] Ficker, Untersuchungen zur Erbenfolge, 1891–95; Ficker, Ueber nähere Verwandtschaft zwischen gothisch-spanischem und norwegisch-isländischem Recht (Mittheilungen des Instituts für österreichische Geschichtsforschung, 1888, ii. 456 ff.). These attempts to reconstruct the genealogy of the various Germanic systems are very interesting, if hazardous.

[32 ] For a map of Europe at the time of Justinian’s legislation see Hodgkin, Italy and her Invaders, vol. iv. p. 1.

[33 ] Brunner, op. cit. i. 292 ff.; Schröder, op. cit. 226 ff.; Esmein, op. cit. 102 ff.; Dahn, Die Könige der Germanen, vii. (2) 50 ff.; Hessels and Kern, Lex Salica, The ten texts, 1880.

[34 ] However, there are some curious relics of heathenry in the Lex Frisionum: Brunner, op. cit. i. 342.

[35 ] Greg. Turon., or at least Turonii. 22 (ed. Omont, p. 60): “Mitis depone colla, Sicamber; adora quod incendisti, incende quod adorasti.”

[36 ] Brunner, op. cit. i. 303 ff.; Schröder, op. cit. 229; Esmein, op. cit. 107. Edited by Sohm in M. G.

[37 ] Brunner, op. cit. i. 332 ff.; Schröder, op. cit. 234; Esmein, op. cit. 108–9. Edited by v. Salis in M. G.

[38 ] Brunner, op. cit. i. 50–51.

[39 ] Ibid. 64–67.

[40 ] Krüger, op. cit. 317; Brunner, op. cit. i. 354; Schröder, op. cit. 234. Edited by v. Salis in M. G.

[41 ] Krüger, op. cit. 309; Brunner, op. cit. i. 358. Edited by Hänel, 1849.

[42 ] Karlowa, op. cit. i. 976.

[43 ] See above, p. 8.

[44 ] The epitomes will be found in Hänel’s edition, Lex Romana Visigothorum, 1849.

[45 ] Brunner, op. cit. i. 365; Karlowa, op. cit. i. 947 ff. Edited by Bluhme in M. G.

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

[47 ] Haddan and Stubbs, Councils, iii. 119. See, however, the remarks of Mr. C. H. Turner, E. H. R. ix. 727.

[48 ] Maassen, op. cit. i. 441.

[49 ] Krüger, op. cit. 319.

[50 ] Conrat, op. cit. i. 32.

[51 ] Krüger, op. cit. 354; Karlowa, op. cit. i. 938; Hodgkin, Italy and her Invaders, vi. 519.

[52 ] Gregorovius, History of Rome (transl. Hamilton), ii. 153 ff.; Oman, Dark Ages, 237, 245.

[53 ] For Byzantine law in southern Italy see Conrat, op. cit. i. 49.

[54 ] Hodgkin, Italy and her Invaders, iv. 571 ff.: “The Sorrows of Vigilius.”

[55 ] Conrat, op. cit. i. 8.

[56 ] Bede, Hist. Eccl., lib. 2, c. 5 (ed. Plummer, i. 90): “iuxta 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.

[57 ] Brunner, op. cit. i. 283.

[58 ] The oldest Germanic word that answers to our law seems to be that which appears as A.-S. æ´. 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; Schröder, op. cit. 222; Schmid, Gesetze, 524; Oxf. Eng. Dict. s.v. ay. For lagu, see Brunner, loc. cit.; Schmid, 621. Hlothær and Eadric increase the æ´ of the Kentish folk by their dooms.

[59 ] Whether we have Ine’s code or only an Alfredian recension of it is a difficult question, lately discussed by Turk, Legal Code of Ælfred (Halle, 1893) p. 42.

[60 ] Brunner, op. cit. i. 368; Schröder, op. cit. 236. Edited by Bluhme in M. G.

[61 ] Brunner, op. cit. i. 308; Schröder, op. cit. 238. Edited by Lehmann in M. G. There are fragments of a Pactus Alamannorum from circ. 600. The Lex is supposed to come from 717–19.

[62 ] Brunner, op. cit. i. 313; Schröder, op. cit. 239. Edited by Merkel in M. G. This is now ascribed to the years 739–48.

[63 ] Brunner, op. cit. i. 340 ff.; Schröder, op. cit. 240 ff. Edited by v. Richthofen and Sohm in M. G.

[64 ] K. Maurer, Ueberblick über die Geschichte der nordgermanischen Rechtsquellen in v. Holtzendorff, Encyklopädie.

[65 ] Alfred, Introduction, 49, § 9 (Liebermann, Gesetze, p. 46).

[66 ] Brunner, op. cit. i. 370; Schröder, op. cit. 235.

[67 ] Brunner, op. cit. i. 259; Schröder, op. cit. 225; Esmein, op. cit. 57.

[68 ] Agobardi Opera, Migne, Patrol. vol. 104, col. 116: “Nam plerumque contingit ut simul eant aut sedeant quinque homines et nullus eorum communem legem cum altero habeat.”

[69 ] Stubbs, Constit. Hist. i. 216. See, however, Dahn, Könige der Germanen, vii. (3), pp. 1 ff.

[70 ] See above, p. 10.

[71 ] Brunner, op. cit. i. 260.

[72 ] Ibid. 261 ff.

[73 ] Brunner, op. cit. i. 269; Löning, op. cit. ii. 284.

[74 ] Brunner, op. cit. i. 255.

[75 ] Brunner, Zur Rechtsgeschichte der römischen und germanischen Urkunde, i. 187.

[76 ] Brunner, D. R. G. i. 401; Schröder, op. cit. 254. Edited in M. G. by Zeumer; also by E. de Rozière, Recueil général des formules.

[77 ] Brunner, op. cit. i. 374; Sohröder, op. cit. 247; Esmein, op. cit. 116. Edited in M. G. by Boretius and Krause; previously by Pertz.

[78 ] Brunner, op. cit. i. 382; Schröder, op. cit. 251; Esmein, op. cit. 117.

[79 ] Maassen, op. cit. i. 667 ff.; Tardif, op. cit. 117. Printed in Migne, Patrol. vol. 84.

[80 ] For the Roman 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.

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

[82 ] Hinschius, op. cit. iv. 849 ff.

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

[84 ] Ibid. 164. Printed in Migne, Patrol. vol. 140.

[85 ] Ibid. 170. See Fournier, Yves de Chartres, Paris, 1898.

[86 ] We borrow la féodalité classique from M. Flach: Les origines de l’ancienne France, ii. 551.

[87 ] Esmein, op. cit. 487–88; Viollet, op. cit. 152. Schröder, op. cit. 624: “Vom 10. bis 12. Jahrhundert ruhte die Gesetzgebung fast ganz . . . Es war die Zeit der Alleinherrschaft des Gewohnheitsrechtes.”

[88 ] Oman, The Dark Ages, 511.

[89 ] 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.

[90 ] The Usatici Barchinonensis Patriae (printed by Giraud, Histoire du droit français, 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; Ficker, Mittheilungen des Instituts für österreichische Geschichtsforschung, 1888, ii. p. 236.

[91 ] Stubbs, Const. Hist. i. 263: “There are few if any records of councils distinctly ecclesiastical held during the tenth century in England.”

[92 ] There seem to be traces of the Frankish forgeries in the Worcester book described by Miss Bateson, E. H. R. x. 712 ff. English ecclesiastics were borrowing and it is unlikely that they escaped contamination.

[93 ] Boretius, Preface to edition of Liber legis Langobardorum, in M. G.; Brunner, op. cit. i. 387 ff.; Ficker, Forschungen zur Reichs- u. Rechtsgeschichte Italiens, iii. 44 ff., 139 ff.; Conrat, op. cit. i. 393 ff.

[94 ] It is well summed up for English readers by Rashdall, Universities of Europe, i. 89 ff. The chief advocate of a maximum of knowledge has been Dr. Hermann Fitting in Juristiche Schriften des früheren Mittelalters, 1876, Die Anfänge der Rechtsschule zu Bologna, 1888, and elsewhere. He has recently edited a Summa Codicis (1894) and some Quaestiones de iuris subtilitatibus, both of which he ascribes to Irnerius. See also Pescatore, Die Glossen des Irnerius, 1888; Mommsen, Preface to two-volume edition of the Digest; Flach, Études critiques sur 1’histoire du droit romain, 1890; Besta, L’Opera d’Irnerio, 1896; Ficker, op. cit. vol. iii. and Conrat, op. cit. passim.

[95 ] See E. J. Tardif, Extraits et abrégés juridiques des étymologies d’Isidore de Séville, 1896.

[96 ] Conrat, op. cit. i. 65.

[97 ] M. G. Leges, ii. 40; Conrat, op. cit. i. 62.

[98 ] 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 issued such a book seems to have vanished from memory. Conrat, op. cit. i. 69.

[99 ] 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.

[100 ] Esmein, op. cit. 347: “Une science nouvelle naquit, indépendante et laïque, la science de la société civile, telle que l’avaient dégagée les Romains, et qui pouvait passer pour le chef-d’œuvre de la sagesse humaine . . . Il en résulta qu’à côté du théologien se plaça le légiste qui avait, comme lui, ses principes et ses textes, et qui lui disputa 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 Summa of Irnerius.

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

[2 ] 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-Saxonicae.—In 1840 the Ancient Laws and Institutes of England were edited for the Record Commission by Price and Thorpe.—This was followed by Reinhold 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— Konrad Maurer, Angelsächsische Rechtsverhältnisse, 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, Schröder, v. Amira and others.—For the Scandinavian side of the story, see Steenstrup, Danelag, Copenhagen, 1882.

[3 ] 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.

[4 ] The principal collections are:—Kemble, Codex Diplomaticus, 1839–48.— Thorpe, Diplomatarium, 1865.—Earle, Land Charters, 1888.—Birch, Cartularium, 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.

[5 ] Æthelst. ii. 2. A man who was considerable enough to have only the king above him required, of course, no other lord.

[6 ] A.-S. Chron. ann. 921.

[7 ] Ælf. 43.

[8 ] A solitary claim of villeinage is reported in the reign of James I.

[9 ] Æthelst. vi. (Iudicia civitatis Lundoniae) 8 § 2.

[10 ] Kemble, Saxons, i. 261. The A.-S. term for the kindred is “mægð,” in Latin versions “parentela.”

[11 ] Hen. 88 § 13; Schmid points out the strong resemblance to Lex Sal. 60, “De eo qui se de parentilla tollere vult.”

[12 ] Brunner, D. R. G. i. 104 ff.

[13 ] The modern form thane has acquired misleading literary associations.

[14 ] Schmid, Gesetze, pp. 389, 397, 431.

[15 ] Little, Gesiths and Thegns, E. H. R. iv. 723; Maitland, Domesday Book, 161.

[16 ] Wiht. 26.

[17 ] Hl. and E. 5; see Schmid thereon. The slave-traders were often foreigners, commonly Jews. Ireland and Gaul were the main routes.

[18 ] In. 11.

[19 ] Æthelr. v. 2, vi. 9; Cn. ii. 3; cf. Lex Rib. 16; Lex Sal. 39 § 2.

[20 ] A. Napier, Berlin, 1883, pp. 129, n., 158, 160–61.

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

[22 ] Leges Willelmi, i. 41.

[23 ] Cod. Dipl. iv. 263 (manumission by Geatflæd 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.

[24 ] L. Q. R. vii. 64.

[25 ] Wiht. 8: an archaic authority, but there is nothing to show any change.

[26 ] Ælf. 43 (as Schmid and the Latin version take it). Cp. Theod. Pen. xiii. 3 (Haddan and Stubbs, Councils, iii. 202).

[27 ] Æthelb. 26.

[28 ] Wiht. 8: “If one manumits his man at the altar, let him be folk-free.”

[29 ] 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 57. See also Maurer, Kritische Ueberschau, i. 410; Jastrow, Zur strafrechtlichen Stellung der Sklaven (Gierke’s Untersuchungen, 1878); Brunner, D. R. G. i. 95.

[30 ] In. 9. The wording “wrace dó” is vague: doubtless it means taking the other party’s cattle.

[31 ] E.g. Clovelly Court, N. Devon. Cp. Rentalia et Custumaria, Somerset Record Society, 1891, Glossary, s.v. Curia. For the aula, haula, halla of D. B., see Maitland, Domesday Book, 109 ff.

[32 ] Brunner, D. R. G. ii. 375.

[33 ] The usual modern term “compurgator” was borrowed by legal antiquaries from ecclesiastical sources in much later times.

[34 ] 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.

[35 ] The appearance of orest (a correct Northern form = Eng. eornest) 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.

[36 ] Brunner, D. R. G. ii. 415.

[37 ] Leg. Will. ii. (Willelmes cyninges ásetnysse).

[38 ] Ælf. 42. Sir James Stephen’s statement (Hist. Crim. Law, i. 61) that “trial by battle was only private war under regulations” cannot be accepted.

[39 ] Cn. ii. 22, and the newly-printed gloss in Liebermann, Consil. Cnuti, 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 “threefold” ordeal.

[40 ] Edg. iii. 5 (third quarter of tenth century); “Institutes of Polity” in Thorpe, Ancient Laws, ii. 313.

[41 ] 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 ff.

[42 ] “Witenagemót” does not appear to have been an official term.

[43 ] Edg. iii. 2; repeated Cnut, ii. 17.

[44 ] Æthelst. ii. 3.

[45 ] Cf. Æthelst. vi. (Iud. Civ. Lund.) 8 §§ 2, 3.

[46 ] Blackstone, Comm. iii. 51.

[47 ] Blackstone, Comm. iii. 444.

[48 ] Cases collected in Essays in Anglo-Saxon Law, ad fin.

[49 ] Haddan and Stubbs, Councils, iii. 541, 596.

[50 ] Earle, Land Charters, 453.

[51 ] Kemble, Saxons, ii. 247, 249.

[52 ] 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. iii. 5.

[53 ] Edg. iii. 1.

[54 ] Cf. Schmid, Glossar, s.v. mearc; Maitland, Domesday Book, 275.

[55 ] Maitland, Domesday Book, 80 ff., 258 ff.

[56 ] Leg. Hen. c. 87 § 10, 89 § 1, secundum legem Saligam; 90 § 4, secundum legem Ribuariorum solvatur.

[57 ] Leg. Hen. c. 33 § 4: “de libro Theodosianae legis, iniuste victus infra tres menses reparet causam.” The quotation is really from an epitome of the Lex Romana Visigothorum.

[58 ] See A.-S. Chron. ann. 1002.

[59 ] Fustel de Coulanges, Origines du système féodal, 300 ff. Lex Sal. xiii. 6; lvi. 5. Edict of Chilperic, 9. To be out of the king’s protection is to be extra sermonem suum, foras 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. R. G. ii. 42), ore suo utlagabit eum rex, or, as the second edition gives it, utlagabit eum rex verbo oris sui, looks more like the confused imitation of an archaizing compiler than a genuine parallel.

[60 ] For some further details see Pollock, Oxford Lectures, 1890, “The King’s Peace,” 65.

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

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

[63 ] Cn. ii. 20.

[64 ] Ælf. Prolog. 19, copied from the book of Exodus, is of course no exception.

[65 ] Cp. Grettis Saga, c. 79.

[66 ] Brunner, D. R. G. i. 86. An archaic synonym leód occurs Æthelb. 22, 23, cp. Grimm, 652.

[67 ] Ælf. 42.

[68 ] Edm. ii. 7, and Be Wergilde (Schmid, App. vii.) § 4.

[69 ] Edm. ii. 1. Æthelr. ii. 6 § 1, suggests but hardly proves a change, leaving the option with the slain man’s kindred alone, though such is held to have been the settled rule on the continent: Brunner, D. R. G. i. 163.

[70 ] Tac. Germ. c. 12. Bót is closely connected with “better”: the idea is “making good.”

[71 ] Ælf. Prolog. 49 § 7.

[72 ] In. 18; Ælf. 32; Cn. ii. 16, 30. The “folk-leasing” of Alfred’s law must be habitual false accusation in the folk-moot, not private slander.

[73 ] It was formally abolished in civil proceedings only in 1879, 42 & 43 Vict. c. 59, s. 3. In criminal matters it is still possible. But it has not been in use for a generation or more.

[74 ] E. & G. 6 § 6; cp. Edg. i. 3; Æthelr. i. 1 § 9, and many later passages.

[75 ] E. & G. 6 § 7: the outlaw, if slain, shall lie æ´gylde, the exact equivalent of the Homeric nhvpoinoı.

[76 ] Co. Lit. 130 a; Blackstone, Comm. iv. 118; 5 Eliz. c. 1.

[77 ] Eng. tiht-bysig, folce ungetrýwe, Lat. incredibilis. The idea is the contradiction of getrýwe = homo probus or legalis. Folce or eallum folce signifies merely notoriety: we cannot find in the text, as some writers have done, a doctrine of fealty to the people as a quasi-sovereign.

[78 ] Edg. iii. 7; Cn. ii. 33; cp. ib. 22.

[79 ] Æthelst. ii. 3, cp. 17; iv. 3. Cp. vi. 8, as to over-powerful clans.

[80 ] Cf. Baillie Nicol Jarvie on the state of the Highlands, Rob Roy, ii. ch. 12 (original edition).

[81 ] Liutprand openly regretted that trial by combat could not be abolished. Liutpr. c. 118: “incerti sumus de iudicio dei, et multos audiuimus per pugnam sine iustitia causam suam perdere: sed propter consuitutinem gentis nostrae langobardorum legem ipsam uetare non possumus.” Avitus, Bishop of Vienne, protested against Gundobad’s ordinance. At a later time Agobard of Lyons denounced it. See Lea, Superstition and Force, ed. 4, p. 409.

[82 ] Ælf. 4.

[83 ] Ed. Roth. 1 (L. Langob.) “contra animam regis cogitaverit aut consiliaverit”; L. Sax. 24, “de morte consiliatus fuerit”; so L. Baiuw. ii. 1; L. Alam. 23: “in mortem ducis consiliatus fuerit”; cp. Brunner, D. R. G. ii. 688.

[84 ] 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 Romani quive imperium potestatemve habeat occidatur.” Dig. 48. 4. ad 1. Iuliam maiestatis, 1 § 1. The consiliaverit, consiliatus fuerit, of the Germanic laws can hardly be an accidental resemblance. In Glanv. xiv. 1, the principal terms are machinatum fuisse vel aliquid fecisse, but consilium dedisse is there too.

[85 ] Cn. ii. 64; Leg. Hen. 12.

[86 ] Ælf. 4; Æthelst. ii. 4; Æthelr. v. 30, vi. 37; Cn. ii. 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. Æthelred’s ordinance, vi. 37, requires the “deepest oath,” whatever that was. Cp. Godwine’s oath “cum totius fere Angliae principibus 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 walreáje, Schmid, App. xv. in a document apparently of Danish extraction; see Brunner, D. R. G. ii. 684. The Lex Ribuaria requires in some special cases an oath of 36 or even 72 men.

[87 ] Edg. i. 9; Dóm be hátan ísene and wætre, Schm. App. xvi.

[88 ] Cn. ii. 56; Hen. 71, 92. See Schmid, Gloss. s.v. morð, and cp. the old Norse adage, “Night-slaying is murder” (Natt-víg er morð-víg); also Lex Rib. 15.

[89 ] In. 35, cp. 28; Æthelst. vi. (Iud. Civ. Lund.) 7; cp. Ed. Conf. 36.

[90 ] Ælf. 42.

[91 ] In. 21.

[92 ] 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 killing was not secret.

[93 ] Ælf. 35. For continental analogies, see Brunner, D. R. G. ii. 674.

[94 ] Ælf. 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 sixteenth to seventeenth century 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.

[95 ] Hen. 88 § 6, 90 § 11. [Þe] brecht ungewealdes bete gewealdes, in Germany wer unwillig gethan muss willig zahlen; see Heusler, Institutionen, ii. 263.

[96 ] Cn. ii. 75; cp. Hen. 87 § 2.

[97 ] See Ine 29; Ælf. 19.

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

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

[100 ] Ælf. 12 seems to relate only to wilful trespass in woods.

[101 ] Ælf. 23.

[102 ] Ælf. 13.

[103 ] Ælf. 24.

[104 ] In. 17.

[105 ] Cn. ii. 21.

[106 ] Ib. 29.

[107 ] Ine 7, 57.

[108 ] Ed. Napier, Berlin, 1883, p. 158.

[109 ] As to robbing corpses, Schmid, App. xv. Be Walreáfe.

[110 ] Ælf. 5 § 5; the principle is reaffirmed, but so vaguely as to suggest that it had become obsolete in practice, in Cn. ii. 38.

[111 ] Muirhead, Private Law of Rome, 149, 163, 227 (origin of stipulation).

[112 ] The Roman words credere, fides, spondere, involve a whole history of this kind. Pernice, Labeo, i. 409; Pacchioni, Actio ex Sponsu, Bologna, 1888: Ehrenverpfändung in German formulas as late as fifteenth century, see Kohler, Shakespeare vor dem Forum der Jurisprudenz, 1884, appx.

[113 ] Edm. ii. 7, and Be Wergilde, Schmid, App. vii.

[114 ] Ælf. 33. Cp. the provisions as to “briduw” in the laws of Howel (tenth century) ap. Haddan and Stubbs, Councils, i. 237, 271.

[115 ] Hl. & 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.

[116 ] Edg. iv. 6; Cn. ii. 24.

[117 ] Leg. Will. i. 45.

[118 ] See Æthelr. ii. 9, Be teámum, and Schmid’s Glossary s. vv. Käufe, Teám.

[119 ] Glanv. x. 15–17.

[120 ] Ine 53.

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

[122 ] Ine 3 § 2; Ælf. 43; Rect. S. P. 3.

[123 ] Ine 40.

[124 ] Ine 42 is a good illustration, though by itself not conclusive.

[125 ] 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, 237–38.

[126 ] See Fustel de Coulanges, Le bénéfice et le patronat, ch. iv–vii.

[127 ] Royal Prerogative, ed. 1849, p. 135.

[128 ] Folk-land, E. H. R. viii. 1–17.

[129 ] It is now prudent rather than necessary to remind the reader that Kemble’s brilliant conjectures were premature and largely unwarranted.

[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 Rolls.—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 Encyklopädie.—Waitz, Ueber die Quellen zur Geschichte der Begründung der Normannischen Herrschaft in Frank-reich, Nachrichten von der Gesellschaft der Wissenschaften, Göttingen, 1866, pp. 69–95.—Steenstrup, Inledning i Normannertiden, Copenhagen, 1876, of which the author gave a French translation in the Bulletin de la Société des antiquaires de Normandie, vol. x. p. 185, under the title Études préliminaires pour servir à l’histoire des Normands.—von Amira, Die Anfänge des Normannischen Reichs, Historische Zeitschrift, Neue Folge, vol. iii. p. 241.—Delisle, Études sur la condition de la classe agricole en Normandie, Évreux, 1851, and the same writer’s essays on Norman finance in the Bibliothèque de l’École des chartes, ser. ii. vol. 5; ser. iii. vols. 1, 3.—The editions of the rolls and custumals referred to below.—Luchaire, Institutions monarchiques de la France sous les premiers Capétiens, 1883, and Luchaire, Manuel des institutions françaises, 1892.

[2 ] Magni Rotuli Scaccarii Normanniae sub Regibus Angliae, published by Stapleton, and reprinted in Mémoires de la Société des antiquaires de Normandie, vol. xv. A fragment of the roll of 1184 was published by Delisle, Caen, 1851.

[3 ] These are most accessible in Delisle’s Recueil de jugements de l’échiquier de Normandie au xiii^me siècle, Paris, 1864. A collection of judgments delivered in the assizes between 1234 and 1237 will be found in Warnkönig’s Französische Staatsund Rechtsgeschichte, vol. ii. Urkundenbuch, pp. 48–69.

[4 ] Edited by E. J. Tardif, Rouen, 1881.

[5 ] 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 1254–58.

[6 ] Dudo, Duchesne, p. 85. The story of Hrolf’s legislation has been rejected as fabulous, but is defended by Steenstrup, Études préliminaires, pp. 351–91.

[7 ] This is frankly admitted by Steenstrup, Études préliminaires, p. 375: “Les coutumes les plus anciennes de la Normandie datent du xii^me siècle, et le droit qu’elles nous présentent est français, quoiqu’il y ait quelques restes des coutumes du Nord. Il serait injuste d’enregistrer ces sources dans la législation scandinave; elles appartiennent à une législation spéciale, à la législation anglo-normande.”

[8 ] Waitz, D. V. G. vi. 1.

[9 ] 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. R. G. i. 211; Fustel de Coulanges, Le bénéfice 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.

[10 ] 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 “cum colonis et conditionariis seu liberis hominibus”; Gall. Christ. xi. Instrum. p. 66; Neustria Pia, p. 626. In another charter he confirms “dominium cum militibus quod dedit Olilia”; Gall. Christ. xi. Instrum. p. 203.

[11 ] In 968 Duke Richard the Fearless grants Bretteville to Saint Denis with the assent of his lord Hugh Duke of the French, “cum assensu senioris mei Hugonis Francorum Principis”; Bouquet, ix. 731. In 1006 King Robert confirmed a gift made by Duke Richard the Good to Fécamp; Gall. Christ. xi. Instrum. p. 7. Such transactions as these were probably exceptional; but instances in which Norman lords confirm gifts made by their subordinates and in which the duke confirms these confirmations are abundant. See for example Orderic’s account of the gifts to Saint Evroul; ed. le Prevost, vol. ii. p. 16 ff. Ralph Taisson, when endowing an abbey, forbids any of his barons or other men to give or sell any of their possessions to any other church; Gall. Christ. xi. Instrum. p. 63.

[12 ] Neustria Pia, 311: “Ego Abbas Albertus Abbatiae SS. Stephani Prothomartyris et Christi Confessoris Maximini . . . erat mihi quidam alodus ex materna hereditate, non ex alicuius beneficio, quem S. Petro in Gemmetico monasterio . . . dedi. Est autem ipse alodus in pago Belismensi.” Ibid. 217 in a charter for Fécamp, Richard II. says that he is pleased to confirm “ea quae fideliter communi nostro [?] aut precario vel beneficiis quae nostri iuris erant vel de hereditatibus quas paterno iure possidebant concessere.” The first words of this passage seem corrupt, but the beneficium is treated as something that is not a hereditas and is brought into con nexion with precarious tenure. Rouen Cartulary (ed. Deville), 451: “dedit S. Trinitati omnem decimam terrae suae in alodio quam domini sui Rodolfide Warenna tenebat beneficio.” Neustria Pia, 634; the Abbot of Caen “emit allodium” and afterwards “dedit in feodo.”

[13 ] Neustria Pia, 627: William the Conqueror 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 quicumque allodiarii infra leugam Pontis Divae.” Ibid. 636: “Rogerius de Rozel vendidit Gisleberto Abbati [de Cadomo] concedente Normaniae Comite, pro xv lib. census, allodium suum 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.

[14 ] It is thus, for example, that William of Jumièges (Duchesne, 250) speaks of the relation between Duke Richard II. and his bastard brother William:—“Is enim [Willelmus] fraterno contubernio Oximensem ab ipso [Ricardo] accipiens munere comitatum ut inde exhiberet ei militiae statuta . . . dominium eius sprevit.” William the Conqueror gives to the church of Lisieux “terram de Fontaines . . . et servitium militum . . . 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 Sauveur 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.

[15 ] Dudo, Duchesne, 85: “Illam terram suis fidelibus funiculo divisit.”

[16 ] According to Dudo, Duchesne 82–84, the grant was made “in sempiternam per progenies progenierum possessionem . . . quasi fundum et alodium in sempiternum . . . in alodio et in fundo.”

[17 ] 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 Jumièges, Duchesne, 250, says that Richard the Good gave to his brother William the county of Eu and a beautiful girl called Lescelina, the daughter of one Thurkill, a man of 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: “Guillelmus Gualterii de Falesia filius fuit et in militia nimium viguit, unde Guillelmus Princeps filiam Guidmundi cum toto ei honore Molinensi contulit.” It is not impossible that the king of the French had twice asserted a right to the wardship of an infant duke of the Normans. As to the case of Louis d’Outre-Mer and Richard the Fearless, see Palgrave, Hist. Normandy, ii. chs. 3, 4; Freeman, Norman Conquest, ch. iv. § 4; Kalckstein, Geschichte des französischen Königthums, i. 238–39. 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 Cnut banished his father’s widow, the Norman Emma, and that she went to Flanders instead of to Normandy, “Willelmo namque domino Normannorum adhuc in aetate puerili cum rege Francorum 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 monarchiques sous les premiers Capétiens, i. 113–14; ii. 15.

[18 ] About the time of the Conquest the word feodum becomes very common in the Norman charters; but beneficium still appears. William of Jumièges, Duchesne, 259, tells how William of Bellême held the castle of Alençon “beneficii iure” and tried to shake off “serviminis iugum.” Luchaire, Institutions monarchiques sous les premiers Capétiens, i. 87, remarks that in the charters of the French kings beneficium is still common under Hugh Capet and Robert 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 Bellême is a capital instance. Women were inheriting fiefs in France from the end of the tenth century onwards; Luchaire, Manuel des institutions françaises, 167.

[19 ] Ord. Vit., vol. ii. p. 470: “Hugo Paganus Crassa Lingua et Agnes uxor eius atque Guido filius eorum concesserunt S. Ebrulfo vicecomitatum, id est viariam, quantam habebant in Villariis Vastatis.”

[20 ] 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 Fécamp and for Saint Michael of the Mount; Neustria Pia, 215–17, 377–78. Another instance is afforded by the charter of William of Bellême for Lonlai; Neustria Pia, 425. Observe also the words “in pasnagio, in venationibus, in placitis ” in the charter for Cérisi; Neustria Pia, 431.

[21 ] See in Dudo, Duchesne, 136–40, the panegyric on Richard the Fearless, also what William the Archdeacon of Lisieux, Duchesne, 193, says of the Conqueror.

[22 ] 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.

[23 ] The one extreme is marked by Palgrave, the other by Steenstrup.

[24 ] Thus in or about 1077 a suit came before William’s court; he orders the Archbishop of Rouen, Roger de Beaumont “and many other barons” to make a judgment “ut facerent inde iudicium”; Mémoires de la Société des antiquaires de Normandie, vol. xv. pp. 196–97.

[25 ] See e.g. Richard II.’s grant to St. Wandrille, his grant to St. Michael of the Mount, the Conqueror’s charter for Fécamp; Neustria Pia, 165–66, 223–24, 377–79.

[26 ] In 1086 a suit is heard in the court of Robert of Bellême; he presides, but three abbots, nine named laymen, and many others are the “iudices huius placiti”; Neustria Pia, 311.

[27 ] The ordeal of fire occurs in the legend of Rollo; Dudo, Duchesne, p. 85. William Pantolf purged himself of the murder of Mabel of Bellême 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.

[28 ] See William’s charter for St. Wandrille, Neustria Pia, 168; the champions being ready for battle William interferes and makes peace. This is an early instance of a “concordia per finem duelli.”

[29 ] 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.

[30 ] Hinschius, Kirchenrecht, iv. 797 ff; v. 402; Brunner, D. R. G., ii. 311 ff.

[31 ] Eadmer, Hist. Nov. p. 9, just before he makes his well-known statement about William’s dealings with ecclesiastical matters, has said of him “usus ergo atque leges quos patres sui et ipse in Normannia habere solebant in Anglia servare volens.” His edict (Leg. Will. 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.

[32 ] 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 see Hinschius, Kirchenrecht, v. 305. In the so-called Leges Edwardi Confessoris, c. 2, we read that the peace of God prevails during certain holy seasons, e.g. from noon on Saturday throughout Sunday, and that if anyone breaks this, the bishop has jurisdiction. This claim of jurisdiction probably betrays French influence. The laws of Æthelred v. 13–19; vi. 19–25, and of Cnut i. 15–17, forbid work and litigation during certain holy seasons and vaguely add that during these seasons peace and concord should prevail. Even this may betray the influence on England of the great ecclesiastical movement which established the treuga Dei, but 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.

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

[34 ] Delisle, op. cit. 17–19; Luchaire, Manuel des institutions, 295.

[35 ] Thus in a charter of the Conqueror for Trinity Abbey at Caen: “item in insula de Gerzoi unum molendinum et terram duorum francorum hominum”; Neustria Pia, 659. So in a charter of the Conqueror for S. Stephen’s Abbey at Caen, Neustria Pia, 626: “Trado igitur . . . villas iuris mei . . . cum colonis et conditionariis seu liberis hominibus . . . Et homines quidem duarum premissarum villarum videlicet C. et R. qui francam terram non tenent ad servitium ecclesiae et monachorum . . . concedo.” Delisle, op. cit. 17, 18, gives a few instances of zervi in the eleventh century.

[36 ] 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.”

[37 ] See above, p. 25.

[38 ] Lanfranc’s juristic exploits are chronicled in the Liber Papiensis, M. G. Leges, iv. pp. xcvi, 402, 404, 566. See also Ficker, Forschungen zur Geschichte 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 Laufranci, ed. Giles, 291: “Adolescens orator veteranos adversantes in actionibus causarum frequenter revicit, torrente facundiae accurate dicendo.”

[39 ] Robertus de Monte, ann. 1032, ed. Howlett, p. 25: “Lanfrancus Papiensis et Garnerius socius eius repertis apud Bononiam legibus Romanis, quas Iustinianus imperator Romanorum . . . emendaverat, his inquam repertis, operam dederunt eas legere et aliis exponere.” Savigny, Gesch. des röm. Rechts, cap. xxvii. § 8, points out that the story cannot be true; Lanfranc must have left Italy before the days of Irnerius.

[40 ] See Savigny, op. cit., cap. vi. § 135. Robert of Torigny (Robertus de Monte), ann. 1117, ed. Howlett, p. 100, tells how Ivo of Chartres, the famous canonist, had when a youth heard Lanfranc in the school at Bec “de saecularibus et divinis litteris tractantem.”

[41 ] See Lanfranc’s letters, especially No. 26, ed. Giles, in which he recommends Bishop Herbert to mend his ways and read the canons: “Postpositis aleis, ut maiora taceam, ludisque saecularibus quibus per totam diem vacare diceris, divinas litteras lege, decretisque Romanorum Pontificum sacrisque canonibus praecipue studium impende.”

[42 ] See below, pp. 100–101.

[1 ] The connexion between our law and the French lei or loi (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 “droits of admiralty.”

[2 ] 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 Ingulf’s History of Croyland (Scriptores post Bedam, p. 512 b) is one of that forger’s clumsiest falsehoods.

[3 ] Maitland, Domesday Book, 8.

[4 ] Statute 4 Geo. II. c. 26.

[5 ] 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 1275 has been lost, this also was covered with French writing.

[6 ] Stat. 16 Car. I. c. 10, abolishing the Star Chamber, solemnly recites the Statute 36 Edw. III. Stat. i. c. 15, which says that (despite the use of English as a medium for oral pleading) all pleas are to be enrolled in Latin.

[7 ] Even the earliest and purest glossaries of A.-S. law terms, the Expositiones Vocabulorum, prove this ignorance. As to these glossaries, see Hall, Red Book of the Exchequer, vol. iii. Introduction.

[8 ] The Court Baron (Seld. Society).

[9 ] The Court Baron, pp. 38, 42.

[10 ] 36 Edw. III. Stat. i. c. 15.

[11 ] Robert of Gloucester, lines 9650–730.

[12 ] Wycliffite Translation of the Bible; Matth. vii. 1 “for in what dome Z e demen, Z e sculen ben demed”; Matth. xxvii. 19 “and while he [Pilat] sat for domesman”; Mark xv. 16 “the porche of the mote halle.”

[13 ] The volume of Sarum Charters (Rolls 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 Roll of 10 John is given in facsimile by Hardy, Rot. Cart. p. xli.

[14 ] The proclamations will be found in the Select Charters.

[15 ] 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.

[16 ] The transition from French to English statutes seems to occur suddenly at the accession of Richard 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.

[17 ] Court Baron (Seld. Society), p. 11. See also the Brevia Placitata which are now being edited by Mr. Turner.

[18 ] 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.

[19 ] The French that is a literary language in England under Henry III. and Edward I. should not be called “Norman-French”; Parisian French, the French of the Isle of France, is already its model; but there is some difference of opinion among philologists as to how far “Anglo-French” is entitled to be considered as a dialect which has a history of its own. See Behrens in Paul’s Grundriss d. German. Philologie, i. 807. To dignify with the name “Norman-French” the mere “dog-French” that we find in law reports of the sixteenth century is ridiculous.

[20 ] Laws of William (Select Charters), c. 7.

[21 ] Leg. Willelmi, iv; Eadmer, Hist. Nov. p. 10.

[22 ] Laws of William (Select Charters), c. 1.

[23 ] Laws, c. 2; A.-S. Chron. an. 1086; Florence, ii. 19.

[24 ] Laws, c. 3, 4; Leges Will. i. 22.

[25 ] Laws, c. 6; Leges Will. ii.

[26 ] Laws, c. 7, 8.

[27 ] Laws, c. 5, 9, 10.

[28 ] The precedents are collected in Schmid, Glossar, s.v. Marktrecht.

[29 ] Æthelred, v. 2; Cnut, ii. 3.

[30 ] Cnut, ii. 20.

[31 ] Æthelred, v. 3; vi. 10; Cnut, ii. 2.

[32 ] Edmund, iii. 1.

[33 ] Leg. Will. iii. 3; Leg. Will. i. 22; Leg. Henr. 91; Leg. Edw. 15, 16; Bracton, f. 134 b. In Swedish laws it is common to find the hundred charged 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, 217–18. 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.

[34 ] Laws of William, c. 6; Leges Willelmi, ii. Had William said to the Englishman, “If you accuse a Norman, you must adopt the Norman’s law and offer battle,” even this could not have been regarded as a tyrannous decree; it would have been an application of the principle of “personal law,” which would have looked plausibly equitable. As it is, the Norman has to purge himself even though the Englishman will not fight. He purges himself with “an unbroken oath,” “mid unforedan aðe,” “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. xvii, 128, and Pol. Science Quarterly, xi. 537; Forschungen, 328.

[35 ] Register of Abp. Peckham, i. 77: “leges Howeli Da quae Decalogo dicuntur in diversis articulis obviare.”

[36 ] Orderic (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 “Interdico ne quis occidatur” does not bind the man who says it.

[37 ] Leg. Henr. 92 § 6.

[38 ] 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.

[39 ] Eadmer, Hist. Nov. 224.

[40 ] Selden’s Eadmer, 197; Plac. Anglo-Norm. 7.

[41 ] Heming’s Cartulary, i. 82; Plac. Anglo-Norm. 18.

[42 ] Hamilton, Inquisitio Cantabr. pp. xvii, xviii; Plac. Anglo-Norm. 22.

[43 ] Hist. Abingd. ii. 2; Plac. Anglo-Norm. 30: “sed et alii plures de Anglis causidici per id tempus in abbatia ista habebantur.” This does not imply the existence of men who are lawyers by profession.

[44 ] Stevenson, E. H. R. xi. 731: an important contribution to English diplomatics.

[45 ] 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.

[46 ] Eadmer, Hist. Nov. pp. 31–32.

[47 ] 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.

[48 ] Charters of Liberties (Statutes of the Realm, vol. i.), p. 1; Select Charters. Liebermann, Trans. R. Hist. Soc. viii. 21, gives a critical text.

[49 ] The Pipe Roll 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.

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

[51 ] Legislation in 1108 about theft and coining: Florence, ii. 57; comp. A.-S. Chron. an. 1124, and Foedera, i. 12. Legislation against abuses of royal purveyance and against bad money: Eadmer, Hist. Nov. 192–93; Will. Malmesb. Gesta Regum, ii. 476. Legislation about wreck: Chron. de Bello, 65; Plac. Anglo-Norm. 144. Legislation about measures, Will. Malmesb. Gesta Regum, 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.

[52 ] Historians of Church of York, iii. 22: “et nova statuta mea de iudiciis sive de placitis latronum et falsorum monetariorum exequatur et finiat [archiepiscopus] per suam propriam iustitiam in curia sua.”

[53 ] Charters of Liberties (Statutes of the Realm, i.), p. 4; Select Charters; Stubbs, Const. Hist. i. 346.

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

[55 ] As to the ecclesiastical legislation, see Stubbs, Const. Hist. i. 404.

[56 ] 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.

[57 ] This is Leges Willelmi iv. of Thorpe and Schmid.

[58 ] This is Leges Willelmi ii. of Thorpe and Schmid.

[59 ] 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 Hic 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 the twelfth century he gives in Zeit-schrift für romanische Philologie, xix. 82. The expanded form of it is Leges Willelmi iii. of Thorpe and Schmid. 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.

[60 ] We have here tried to sum up very briefly the results attained by Liebermann, Quadripartitus, Halle, 1892.

[61 ] Leg. Henr. 33 § 4. He cites Liber Theodosianae Legis, but what he really has under that name seems to be the Epitome Aegidii; see Hänel, 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 character 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.

[62 ] The preface cannot 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. xvi. p. 582. His conclusion is accepted by Stubbs, Const. Hist. i. 533 (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.

[63 ] Leg. Henr. 70 § 1; 87 § 5.

[64 ] These two tracts are Consiliatio Cnuti, published by Liebermann at Halle in 1893, and Instituta Cnuti aliorumque Regum Anglorum, communicated by him to the Royal Historical Society in the same year; Transactions, vii. 77.

[65 ] Constitutiones de Foresta, Schmid, p. 318. Liebermann, Ueber Pseudo-Cnuts Constitutiones de Foresta, Halle, 1894.

[66 ] 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. That the French text is the origin of the Latin is plain from several passages, in particular from c. 45 when compared with Cnut, ii. 24 (the Latinist thinks that voest means “let him see,” whereas it means “let him vouch”). On this point see Liebermann, Quadripartitus, p. 54. The Latin version is sometimes exceedingly stupid; see e.g. the “idoneos cultores” of c. 31. The text has 52 chapters. From 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 Rhodia de iactu (Dig. 14, 2); c. 38, the eviction of one co-parcener does not prejudice the rights of the others, being res inter alios acta (Cod. 7, 56, 2). To these we may add c. 34, the division of an inheritance among all the children; this, unless enfans means sons, can hardly be English 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 ms of the French version ends. As to the Danish traits of the earlier articles, see Steenstrup, 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.

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

[68 ] Leges Edwardi Confessoris, c. 11.

[69 ] Liebermann, op. cit. 16.

[70 ] The exemption from Danegeld of ecclesiastical demesnes, as stated in c. 11, is, to say the least, exceedingly doubtful. See Round in Domesday Studies, i. 95–96.

[71 ] Hoveden, ii. 218, takes it up into his chronicle.

[72 ] Bracton, f. 134 b. Liebermann, op. cit. 122.

[73 ] Dr. Liebermann spoke of this work some time ago in his Einleitung in den Dialogus de Scaccario, pp. 72–77. 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 für romanische 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.

[74 ] Will. Malm. Gesta Regum, ii. 314. Malmesbury says that in his own day FitzOsbern’s rule still prevailed.

[75 ] Will. FitzStephen (Materials for Life of Becket, iii.), p. 62.

[76 ] This famous phrase comes from a rhetorical passage in which William of Malmesbury is describing the days of Rufus; Gesta Regum, ii. 369: “Nullus dives nisi nummularius, nullus clericus nisi causidicus, nullus presbyter nisi, ut verbo parum Latino utar, firmarius.” He has just called Ranulf Flambard “invictus causidicus.” But, as noticed above, these causidici were not all of French race.

[77 ] Leg. Henr. 9 § 9: “Legis enim Angliae trina est partitio; et ad eandem distantiam supersunt regis placita curiae, quae usus et consuetudines suas una semper immobilitate servat ubique.” Ibid. 6 § 2: “Legis etiam Anglicae trina est partitio . . . praeter hoc tremendum regiae maiestatis titislamus [?] imperium.”

[78 ] Dialogus, lib. i. c. xvi: “Rex Willelmus . . . decrevit subiectum sibi populum iuri scripto legibusque subicere. Propositis igitur legibus Anglicanis secundum tripartitam earum distinctionem, hoc est Merchenelage, Denelage, West-saxenelage, quasdam reprobavit, quasdam autem approbans, illas transmarinas Neustriae leges, quae ad regni pacem efficacisimae videbantur, adiecit.”

[79 ] Leg. Henr. c. 10.

[80 ] Early instances of the king’s missi presiding in the local courts are these:— the Bishop of Coutances presides at the famous session on Penenden Heath: Plac. Anglo-Norm. p. 7; he and others preside over the county court of Worcestershire: ibid. p. 17; he and others preside over a combined moot of the eastern counties: ibid. p. 24; Lanfranc presides at Bury over a combined moot of nine shires: Memorials of St. Edmund’s Abbey, i. 65. The payments “pro recto” recorded on the Pipe Roll of Henry I. were probably payments made for evocatory writs; see Plac. Anglo-Norm. 140–42.

[81 ] Apparently as a general rule the sheriffs hear the pleas of the crown, but the profits go to the king and are not, unless some special compact has been made, covered by the ferms of the counties; Leg. Henr. c. 10 § 3.

[82 ] 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.

[83 ] We have a life-like, though perhaps not an impartial, report of the trial of William of St. 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. 60–62.

[84 ] As to the king’s court and exchequer, see Stubbs, Const. Hist. c. xi, and Gneist, Geschichte, § 10.

[1 ] See above, p. 27.

[2 ] See the passages collected by Holland, E. H. R. vi. 147–48.

[3 ] Quadripartitus, p. 149; Leg. Henr. preface.

[4 ] For the matter of this paragraph, see Schulte, Geschichte der Quellen des Canonischen Rechts.

[5 ] As to the date, see Schulte, i. 48.

[6 ] Schulte, i. 84, 85, 88, 187–89. 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.

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

[8 ] We speak of the middle of the twelfth century; before its end even the popes perceive that limits must be set to the appeal.

[9 ] Maitland, Canon Law in England; E. H. R. vol. xii.

[10 ] This point has been argued at length in E. H. R. xi. 446, 641.

[11 ] Chron. Abb. de Evesham, p. 189: “Pater sancte nos didicimus in scholis, et haec est opinio magistrorum nostrorum, quod non currit praescriptio contra iura episcopalia.” Et dominus papa, “Certe et tu et magistri tui multum bibistis de cerevisia Anglicana quando haec didicistis.” The result is found in c. 15, X. 2. 26.

[12 ] Epistolae Cantuarienses, p. 520.

[13 ] See below, p. 130.

[14 ] See above, pp. 108, 110.

[15 ] Malmesbury’s connexion with this work is discussed by Dr. Stubbs in his introduction to the Gesta Regum, i. cxxxi ff. The work itself is described by Hänel, Lex Romana Visigothorum, p. lv. See also Conrat, Geschichte der Quellen des R. R., i. 232.

[16 ] See above, p. 84.

[17 ] Rob. de Torigny, p. 100; Savigny, Geschichte, cap. 15 § 106; Conrat, Geschichte, i. 378.

[18 ] Liebermann, Anselm von Canterbury, p. 41.

[19 ] Monasticon, i. 244–50: “Christianam legem quam hic scriptam habeo testem invoco.”

[20 ] William of Malmesbury, Gesta Regum, ii. 553. The legate says, “Rex 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 Rome between Stephen and Matilda, see Round, Geoffrey de Mandeville, 250 ff.

[21 ] William Fitz Stephen, Materials for Life of Becket, iii. 17.

[22 ] 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. Howlett), 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 1896 the whole story of Vacarius was put on a new footing by Liebermann, E. H. R. xi. 305, 514. We adopt his results.

[23 ] Wenck, Magister Vacarius, p. 134.

[24 ] Gervase of Canterbury, loc. cit.; Liebermann, E. H. R. xi. 308; Rashdall, Universities, ii. 335 ff.

[25 ] Joh. Salisb. Polycr. loc. cit. This matter is discussed by Wenck, pp. 28–41. Liebermann, E. H. R. xi. 310.

[26 ] Large portions of the work were published in 1820 by Wenck, 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.

[27 ] 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.”

[28 ] Maitland, Magistri Vacarii Summa de Matrimonio, L. Q. R. 1897.

[29 ] Liebermann, E. H. R. xi. 312–14. Add to the references there given: Jessopp, E. H. R. xi. 747; Historians of the Church of York, iii. 81.

[30 ] Hoveden, iv. 75, and the note by Stubbs.

[31 ] In general as to Vacarius see Wenck’s book; Stubbs, Const. Hist. § 147; Stubbs, Lectures, 120, 137, 141, 301–3; Holland, E. H. R. vi. 243–44; Rashdall, Universities, ii. 335; Liebermann, E. H. R. xi. 305, 514.

[32 ] Geschichte, cap. 36 § 131.

[33 ] Opera, ii. 348; iv. 3. 7.

[34 ] Chronicles of Robert of Swafham, ed. Sparke, pp. 96–98. As to the Summa called Olim (it begins “Olim edebatur”), see Caillemer, Le droit civil dans les provinces anglo-normandes, p. 32.

[35 ] Chron. Evesham, p. 267.

[36 ] Holland, Eng. Hist. Rev. vi. 247; Rashdall, Universities, ii. 338.

[37 ] Caillemer, op. cit. 15–50.

[38 ] Caillemer, op. cit. 50, prints the “Practica Legum et Decretorum edita a Magistro W. de Longo Campo.” Longchamp’s career is described at length by Stubbs in the Introduction to Hoveden, vol. iii. A manual known as the Ordo Iudiciarius of the Bamberg ms is attributed to England; it was published by Schulte in the Proceedings of the Vienna Academy (1872), vol. 70, p. 235.

[39 ] Chron. Evesham, p. 191: “dominum Gualam . . . inter cardinales in iure civili peritissimum.”

[40 ] Schulte, Geschichte des canonischen Rechts, i. 183; Caillemer, op. cit. 33–34; Bethmann-Hollweg, Civil Prozess, vi. 105.

[41 ] 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 St. Paul’s, who was a master there in 1163 or there-abouts—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 Review, cxii, 78.

[42 ] Schulte, ii, 113; Bethmann-Hollweg, Civil Prozess, vi. 123–31; Delisle, Littérature latine, p. 68; Maitland, E. H. R. vol. xii.

[43 ] Epist. Cantuar. pp. 68, 471, 476, 506.

[44 ] Chron. Evesham, pp. 147, 153, 168. Marlborough went to Bologna by the advice of the pope (Innocent III.) and Cardinal Ugolino. He employed as his counsel Magister Merandus Hispanus, who had argued the king’s case against the Canterbury monks, and Bertrand, a knight of Pavia, who as a lawyer was second to none but Azo.

[45 ] Mat. Par. Chron. Maj. iv. 33, 286, 351–53; Schulte, ii. 123; Maitland, Canon Law in England; E. H. R. vol. xii.

[46 ] Stubbs, Const. Hist. § 179; Savigny, Geschichte, cap. 43 § 102.

[47 ] This by the bull Super speculam, of which divers portions are to be found in the Decretales Gregorii, in particular, c. 28, X. 5. 33; Denifle, Chartularium Universitatis Parisiensis, i. 80.

[48 ] Rot. 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 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 cannot believe; we shall hear nothing of English law being taught for a long time to come. See Clark, Cambridge Legal Studies, p. 40.

[49 ] Mat. Par. Chron. Maj. vi. 293–95.

[50 ] Digard, La papauté et l’étude du droit romain, Bibliothèque de l’École des chartes, 1890, vol. 51, p. 381. Denifle, Chartularium Universitatis Parisiensis, 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.

[51 ] Rashdall, Universities, ii. 454; Clark, Cambridge Legal Studies, 42–59.

[52 ] See e.g. Memoranda de Parliamento of 33 Edward I. ed., Maitland, pp. 331, 335.

[53 ] Brunner, D. R. G. § 96; Fournier, Les officialités au moyen âge; Luchaire, Manuel des institutions françaises, p. 121; Hinschius, Kirchenrecht, v. 373 ff.

[54 ] Gesta Henrici (Benedictus), i. 33.

[55 ] 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 Rec. Com., p. 30.

[56 ] Const. Clarend. c. 1.

[57 ] Ulrich Stutz, Geschichte des kirchlichen Beneficialwesens, Berlin, 1895.

[58 ] Glanvill, iv. 12–14.

[59 ] See e.g. Select Civil Pleas, i. pl. 245. Bracton’s Note Book, pl. 551: in 1231 the Bishop of London, in a suit for an advowson, accepts a wager of battle.

[60 ] Maitland, E. H. R. xi. 647.

[61 ] Maitland, E. H. R. xi. 649.

[62 ] 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.

[63 ] Constitutions of Clarendon, c. 9. We shall deal with this matter hereafter when we speak of tenure by frankalmoin.

[64 ] Mat. Par. Chron. Maj. iv. 614; Bracton, f. 402 b, 403; Circumspecte Agatis (Statutes, i. 101), c. 3; Articuli Cleri (Stat. i. 171), c. 1.

[65 ] 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.

[66 ] Glanvill, vii. 15.

[67 ] Stat. Merton, c. 9; Letters of Robert Grosseteste, pp. 76, 95; Bracton’s Note Book, i. pp. 101–116.

[68 ] It is for the ecclesiastical court to decide “an issue of general bastardy,” while “an issue of special bastardy” is tried by a jury. “Is this man a bastard?”—that is an issue of general bastardy. “Is this man a bastard because born before the marriage of his parents?”—that is an issue of special bastardy. Blackstone, Comm. iii. 335.

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

[70 ] Bracton, f. 60 b: “nullam enim meretur poenam quis, quamvis decedat intestatus.”

[71 ] See in vol. ii. our section on Intestacy.

[72 ] Cart. Riev. p. 164: “et primum haec omnia sacramento firmavit, deinde christianitatem in manu mea qua se obsidem dedit etc.”

[73 ] Glanvill, x. 1–3; Bracton’s Note Book, pl. 50, 670, 683, 1361, 1464, 1671; Bracton, f. 406 b. We shall return to the laesio fidei hereafter in our section on Contract.

[74 ] Bracton, f. 401 b, 402.

[75 ] The regular form of the prohibition relating to movables forbad the ecclesiastical judge to meddle with chattels “quae non sunt de testamento vel matrimonio.”

[76 ] Circumspecte Agatis (Statutes, i. 101), c. 6, 11.

[77 ] Of this in our section on Trespasses.

[78 ] Glanvill, vii. 17.

[79 ] See in vol. ii. our section on Ecclesiastical Offences.

[80 ] Note Book, pl. 719, 808; compare Bracton, f. 401 b.

[81 ] Maitland, E. H. R. xi. 646. Gratian at the end of c. 47, C. 11, qu. 1, summed up the matter thus: “Ex his omnibus datur intelligi, quod clericus ad publica iudicia nec in civili, nec in criminali causa est producendus, nisi forte civilem causam episcopus decidere noluerit, vel in criminali sui honoris cingulo eum nudaverit.”

[82 ] Schröder, D. R. G. 569; Fournier, Officialités, 79.

[83 ] Glanvill, vi. 14. The widow who has received no part of her dower may go straight to the king’s court.

[84 ] Schröder, op. cit. 568; Fournier, op. cit. 64–94.

[85 ] Mat. Par. Chron. Maj. ii. 368.

[86 ] Glanvill, vii. 15: “secundum canones et leges Romanas.”

[87 ] Glanvill, Prologus; Bracton, f. 1.

[88 ] See the famous passage in Diceto, i. 434.

[89 ] Diceto, i. 435.

[90 ] Thus on 16th July, 1195, the court consists of Hubert Walter, abp. of Canterbury, Godfrey Lucy, bp. of Winchester, Richard FitzNeal, bp. of London (author of the Dialogus), Gilbert Glanville, bp. of Rochester (a distinguished scholar), Richard Barre, archd. of Ely, Ralph Foliot, archd. of Hereford, William of Chimelli, archd. of Richmond, William of Yes. Ste. Mère l’Église, afterwards bp. of London, Geoffrey FitzPeter, Simon Pateshull, Osbert FitzHervy, Richard Heriet.

[91 ] Blackstone, Comm. i. 19.

[92 ] Rob. Grosseteste, Epist. pp. 76, 95.

[93 ] Giraldus Cambrensis, ii. 344–45, iii. 27–28. Giraldus afterwards retracted his charges; see i. 426.

[94 ] Glanv. ii. 12.

[95 ] Will. de Longo Campo (Caillemer, p. 25): “Sunt enim exceptiones aliae perpetuae, aliae dilatoriae.” Bract. f. 399 b: “Exceptionum quaedam sunt dilatoriae, quaedam peremptoriae.” This from Inst. 4. 13. 8.

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

[2 ] The document that we have professes only to give “a certain part” of the customs that were “recognized and recorded.”

[3 ] Ass. Northamp. c. 4.

[4 ] The documents are printed in the Select Charters, except the Assize of Dread, for which see Cunningham, English Industry and Commerce, ed. 3, i. 568.

[5 ] The most striking testimonies to Henry’s governmental activity are collected by Stubbs, Const. Hist. §147. Ralph Niger says: “Nullo quaestu satiatus, abolitis legibus antiquis, singulis annis novas leges quas assisas vocavit edidit.”

[6 ] 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. R. G. ii. 522–27; Thayer, Development of Trial by Jury, Boston, 1896.

[7 ] 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. lxvi–lxviii; Vinogradoff, Villainage, 370–71. But that the jury should have originally grown out of a body of doomsmen seems almost impossible.

[8 ] Brunner, Schwurgerichte, pp. 74–75.

[9 ] Ibid. p. 87.

[10 ] Regino Prumiensis de Eccles. Discipl. lib. 2, cap. 2 (Migne, Patrol. cxxxii. 282). Stubbs, Const. Hist. i. p. 662, remarks that the iuratores synodi “do not present,” but “only reply to the inquiry of the visiting bishop.” But there is no contrast here, for the English jurors by their presentments only reply to inquiries addressed to them by the royal officer. Cp. Burchardi Wormaciensis Decreta, lib. i. cap. 91 (Patrol. cxl. 571).

[11 ] Æthelred, iii. 3. As to the Danish character of this ordinance see Schmid, Gesetze, p. li; Brunner, Schwurgerichte, p. 403; K. Maurer, Krit. Ueberschau, v. 389; Steenstrup, Danelag, p. 209.

[12 ] Brunner, Schwurgerichte, 402–3.

[13 ] K. Maurer, Das Beweisverfahren nach deutschen Rechten, Krit. Ueberschau, v. 332, 374.

[14 ] von Amira, Paul’s Grundriss der German. Philologie ii. ii. p. 198, contends that the jury appears independently (1) in the Frankish king’s court, (2) the Danish king’s court, and (3) the Icelandic courts.

[15 ] D. B. iv. 497 (Liber Eliensis.)

[16 ] See e.g. Henry II.’s charter for Rochester, Monast. i. 177: “Omnes minutas terras . . . confirmo in perpetuum . . . in tantum et tam pleniter sicut proprii ministri mei exquirere deberent.” This should be compared with the Frankish and Norman privileges. Brunner, Schwurgerichte, 92–95, 238–45.

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

[18 ] Hamilton, Inquisitio Com. Cantab. p. xviii.

[19 ] On several occasions iuratores are mentioned on the Pipe Roll of 31 Henry I. See also Brunner, Schwurgerichte, pp. 465–66.

[20 ] Brunner, pp. 301–4. As to Scotland, there is no doubt that from the time of David I. onwards the kings made use of the inquest procedure. One passage in the laws ascribed to David (c. 35) speaks as though a whole system of writs of novel disseisin and mort d’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.

[21 ] Const. Clarend. c. 9.

[22 ] Gesta Abbatum, i. 113–15. 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.

[23 ] Pipe Roll, 12 Hen. II. p. 65: “pro dissaisina super assisam Regis”; 13 Hen. II. p. 134: “pro dissaisina facta super assisam Regis”; 14 Hen. II. passim. No doubt there are writs of earlier date which in many respects resemble the writ of novel disseisin; see Bigelow, Placita, pp. 128, 130, 169, 170; Howlett, Chronicles of Stephen etc. vol. iii. p. xxxvii; but we cannot find anything which shows that the general ordinance or “assize” was of earlier date than 1166.

[24 ] Bracton, f. 164 b: “de beneficio principis succurritur ei per recognitionem assisae novae disseisinae multis vigiliis excogitatam et inventam.”

[25 ] Charter, 1217, c. 35: “Nullus liber homo . . . dissaisietur de libero tenemento suo . . . nisi per legale iudicium parium suorum vol [= et] per legem terrae.” Compare the formula of the assize “Si B. iniuste et sine iudicio dissaisivit A. de libero tenemento suo.”

[26 ] Glanvill, xii. 2, 25; Brunner, Schwurgerichte, 411.

[27 ] Glanvill, ii. 7.

[28 ] Bracton, f. 112: “Et sicut non debet sine brevi respondere, ita nec debet sine iudicio disseisiri.” Ibid. f. 161: “Nemo debet sine iudicio disseisiri de libero tenemento suo, nec respondere sine precepto domini Regis nec sine brevi.” Rot. Pat. 76: King John says to the people of Ireland, “Nolumus . . . quod aliquis . . . vos possit disseisire de liberis tenementis vestris iniuste aut sine iudicio, nec quod in placitum ponamini per alicuius breve nisi per nostrum vel iusticiarii nostri.” See Manorial Pleas (Selden Soc.), p. lv. 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 institutioni eleganter inserta.”

[29 ] Ass. Northampt. c. 4.

[30 ] Const. Clarend. c. 1.

[31 ] Gesta Henrici, i. 233; Hoveden, ii. 184.

[32 ] Glanvill, xiii. 18, 19.

[33 ] Stat. 59 Geo. III. c. 46.

[34 ] Stat. 3 & 4 Will. IV. c. 42, sec. 13.

[35 ] Continuatio Beccensis, Howlett’s edition of Robert of Torigny, p. 327: “Rex Anglorum Henricus ad Natale Domini [1159] fuit apud Falesiam, et leges instituit ut nullus decanus aliquam personam accusaret sine testimonio vicinorum circummanentium, qui bonae vitae fama laudabiles haberentur.” Const. Clarend. c. 6: “Laici non debent accusari nisi per certos et legales accusatores et testes in praesentia episcopi . . . Et si qui tales fuerint qui culpantur, quod non velit vel non audeat aliquis eos accusare, vicecomes requisitus ab episcopo faciet iurare duodecim legales ho-mines de vicineto, seu de villa, coram episcopo, quod inde veritatem secundum conscientiam suam manifestabunt.” With this should be compared Magna Carta, 1215, c. 38: “Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc inductis.”

[36 ] 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 the procedure of communal accusation as a general means of detecting sins. As a matter of fact, this procedure seems to have been chiefly used with reference either to purely ecclesiastical matters, such as the repair of churches and attendance at church, or to those sins of the flesh which admittedly lay within the province of ecclesiastical jurisdiction.

[37 ] Select Pleas in Manorial Courts (Selden Soc.), pp. xxvii–xxxviii.

[38 ] Stubbs, Introduction to Gesta Henrici, vol. ii, has discussed this matter at length. See also Round, Feudal England, 503.

[39 ] Diceto, i. 434–35.

[40 ] Gesta Henrici, ii. 207.

[41 ] 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 Round, The Earliest Fines, E. H. R. xii. 293.

[42 ] Mapes, De Nugis, p. 241: “Habemus et nos censores sub serenissimo iudice, quorum iustitiam domini sui iustitia remordet, quia iurati coram ipso quod aequitate servata censebunt ut praedicti tres Plutonis arguti iudices.”

[43 ] Glanvill, viii. 5. A fine levied before the itinerant justices always purports to be “finalis concordia facta in curia domini Regis.” Such at least is the case in later times; but see Round, E. H. R. xii. 297.

[44 ] Dialogus, lib. i, c. 4–6.

[45 ] Ibid. lib. i, c. 15.

[46 ] Gesta Henrici, ii. 207–8.

[47 ] Madox, Exchequer, i. 798–801.

[48 ] This is the usual form throughout Glanvill’s book.

[49 ] Round, Feudal England, 513.

[50 ] Glanvill, viii. 5.

[51 ] Select Pleas of the Crown (Selden Soc.), pp. xxvi–xxviii. The rolls of the itinerant justices spoken of in the Dialogue, lib. ii. c. 1, may have been mere lists of amercements.

[52 ] William FitzStephen (Materials for Life of Becket, iii), p. 67.

[53 ] Palgrave, Commonwealth, vol. ii. p. xxviii.

[54 ] Ibid. p. xlvii: “populique insuper multitudine non modica.”

[55 ] Gesta Abbatum, i. 150.

[56 ] Ibid. 151: “Quod in tam iuvene rege non minori sapientiae deputatum est quod dixit, quam iudicium Salomonis inter meretrices altercantes.”

[57 ] Gesta Abbatum, i. 154: “Privilegia, ut credimus, praeiudicant praescriptioni.”

[58 ] Palgrave, Commonwealth, vol. ii. p. lxvii; Bigelow, Placita, 175.

[59 ] Gesta Abbatum, i. 159–66.

[60 ] Palgrave, Commonwealth, vol. ii. pp. v–xxvii; Bigelow, Placita, 311; Hall, Court Life under the Plantagenets; Maitland, L. Q. R. xiii. 141.

[61 ] See Letters of John of Salisbury (ed. Giles), i. 124.

[62 ] Palgrave, p. lxxxiii: “et tandem gratia domini Regis et per iudicium curiae suae adiudicata est mihi terra avunculi mei.”

[63 ] Bigelow, Placita, 170.

[64 ] Palgrave, p. lxxiii; Bigelow, Placita, 222. Mapes, De Nugis, p. 227: “In legibus constituendis et omni regimine corrigendo discretus, inusitati occultique iudicii subtilis inventor.”

[65 ] Bigelow, Placita, 239.

[66 ] Mapes, De Nugis, p. 241.

[67 ] Ibid. p. 242.

[68 ] A full account of the case is given in Gesta Henrici, i. 138–54. 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.

[69 ] Prynne, Records, ii. 588, from Rot. Pat. 28 Hen. III.

[70 ] Hoveden, ed. Stubbs, i. p. xxi.

[71 ] Eyton, Itinerary, 265.

[72 ] The book has been fully discussed by Liebermann, Einleitung in den Dialogus de Scaccario. It is printed by Madox in his History of the Exchequer and by Stubbs in his Select Charters.

[73 ] Liebermann, pp. 33, 42, 54.

[74 ] Ibid. p. 31.

[75 ] Ibid. p. 65.

[76 ] Ibid. p. 10.

[77 ] Ibid. p. 96.

[78 ] Dial. ii. c. 16: “Huius autem rei causam, licet distorta modicum et regiae nimis utilitati serviens videtur, evidentem et satis iustam secundum patrias leges comprobabis.” Ibid. ii. c. 10: “Propter solam regis assisam sic esse cognoscas; nec enim est qui regiae constitutioni, quae pro bono pacis fit, obviare presumat.”

[79 ] Dict. Nat. Biography.

[80 ] Palgrave, Commonwealth, ii. p. xxiii.

[81 ] Hoveden (ii. 215) under the year 1180 says that Henry appointed as justiciar Ranulf Glanvill “cuius sapientia conditae sunt leges subscriptae quas Anglicanas vocamus.” On this there follow (1) one set of the Leges Willelmi (Hic intimatur), (2) the Leges Edwardi, (3) a genealogy of the Norman dukes, (4) an Expositio Vocabulorum 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 Hoveden’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 had already been tacked on to this Tripartita. See Liebermann in Zeitschrift für romanische Philologie, xix. 81.

[82 ] Maitland, Glanvill Revised, Harvard Law Review, vi. 1.

[83 ] The king of the prologue is obviously Henry. In lib. viii. c. 3, reference is made to a record of 31 October, 1187.

[84 ] Mapes, De Nugis, p. 8.

[85 ] According to Eyton, Itinerary, 294–97, Glanvill was in France from March until June 1189; he then came to England to levy troops and was in France again in July.

[86 ] 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. “Hubertus filius Walteri” would of course be a name of the commonest kind, but the omission of the “filius” is, among men of gentle birth, an almost distinctive mark of a particular family, that to which the great archbishop belonged. Bracton therefore seems to be choosing the rare name of a man who has been dead these fifty years. May he not be coupling with his own name that of his only predecessor in English legal literature, whose book he has been constantly using? However this is no more than a suggestion. For arguments against Glanvill’s claim to the treatise, see Hunter, Fines, i. p. xv; on the other side, Foss, Judges of England, i. 181; Liebermann, Einleitung, p. 73.

[87 ] Much first-hand knowledge of the Roman 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.”

[88 ] Leg. Hen. c. 10.

[89 ] Glanvill, vii. 3.

[90 ] Glanvill, Prologus; xii. 6; xiv. 8.

[91 ] Maitland, Glanvill Revised, Harvard Law Review, vi. 1. A second ms of this revised Glanvill is preserved at Caius College.

[92 ] Brit. Mus. ms Lansd. 467: the translator will give the text “en un commun romaunz sans ryme”; Camb. Univ. Ll. i. 16, f. 100. The version in Camb. Univ. Ee. i. 1 is partly in Latin, partly in French.

[93 ] 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 Rechtsgeschichte. A new edition is wanted.

[94 ] What is accounted the most ancient ordinance of a French king comes from Louis VII. in 1155: it establishes a “peace” for ten years: Viollet, Histoire du droit civil français, p. 152; Esmein, Histoire du droit français, ed. 2, 488. From Germany also we have as yet merely Landfriedensgesetze which strive to set limits to private war: Schröder, D. R. G. p. 628.

[95 ] 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 langobardische Lehnrecht, 1896; Schröder, 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 Holtzendorff’s Encyklopädie, p. 310. The Assises for the Haute Cour are of later date.

[96 ] The most notable French law-books are (1) the first part (Brunner’s Très ancienne coutume) of (Tardif’s) Très ancien coutumier de Normandie, compiled circ. 1200; (2) the second part of the same work, circ. 1220; (3) the Grand coutumier de Normandie, circ. 1254–58 (see Tardif’s edition); (4) a custumal of Anjou, 1246; (5) a custumal of the Orléanais, from the first half of the thirteenth century; (6) the so-called Établissements 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. 1254–59, from the Vermandois, highly romanized; (8) the Livre de Jostice et Plet from the Orléanais, circ. 1259; (9) Beaumanoir’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; Schröder, 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: “l’usage des rouleaux d’arrêts, d’origine anglo-normande.” To the same effect, Esmein, op. cit. 742.

[97 ] Stat. West. I. (1275) c. 39; Statutes of Quo Waranto (1289–90).

[98 ] The earliest of the known plea rolls has lately been published by the Pipe Roll Society; others of Richard’s and John’s reigns have been published by the Record Commissioners and the Selden Society. The earliest charter rolls, patent rolls, close rolls have been published by the Record Commissioners.

[99 ] Feet of Fines, 7 & 8 Ric. I (Pipe Roll Soc.), p. 3 ff.

[100 ] Mat. Par. ii. 558: “Erat autem firmissima regni columna, utpote vir generosus, legum peritus, thesauris, redditibus, et omnibus bonis instauratus, omnibus Angliae magnatibus sanguine vel amicitia confoederatus.”

[101 ] Mat. Par. iii. p. 296: “qui quandoque habenas sane moderabatur totius regni iustitiarii.” Ibid. 542: “cuius sapientia aliquando tota Anglia regebatur.”

[102 ] See Baker’s History of Northamptonshire, i. 267; also Dict. Nat. Biog. He certainly was the father of Hugh Pateshull, who was for a while treasurer to Henry III. and became Bishop of Lichfield. Simon had a clerk called Martin; Select Pleas of the Crown (Seld. Soc.), pl. 18.

[103 ] Select Pleas of the Crown, pl. 34.

[104 ] Ibid. pp. xii–xvii.

[105 ] Stubbs, Select Charters; Rolls of the King’s Court (Pipe Roll Soc.), vol. i.

[106 ] Select Charters, Edictum Regium; Hoveden, iii. 299.

[107 ] Hoveden, iv. 33.

[108 ] Rot. Pat. Joh. p. 54.

[109 ] Gesta Henrici (Benedict), ii. 110.

[110 ] Rot. Pat. Joh. p. 47.

[111 ] This Irish Register of Writs is described in Harvard Law Review, iii. 110. The ms is Cotton, Julius, D. 11.

[112 ] Rot. Claus. Joh. p. 32. A writ of 1205, which in technical terms is “a writ of entry sur disseisin in the per, ” has against it the note “Hoc breve de cetero erit de cursu.”

[113 ] Charter 1215, c. 1: “Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et heredibus nostris in perpetuum, omnes libertates subscriptas, 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 castro-rum, terrarum, possessionum et aliis modis quibus poterunt . . . salva persona nostra et reginae nostrae et liberorum nostrorum.”

[114 ] For an interesting discussion of a document professing to be a copy of an earlier charter of liberties, see E. H. R. vii. 288 (Round); ix. 117 (Prothero), 326 (Hall).

[115 ] Charter, 1215, c. 12, 14.

[116 ] Charter, 1215, c. 39.

[117 ] Ibid. c. 2, 32, 33.

[118 ] Ibid. 215 c. 40, 45.

[119 ] For instance c. 54: “Nullus capiatur nec imprisonetur propter appellum feminae de morte alterius quam viri sui”; Select Pleas of the Crown, pl. 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.

[120 ] Charter, c. 18.

[121 ] Ibid. c. 1: “ecclesia Anglicana libera sit et habeat iura sua integra et libertates suas illaesas.”

[122 ] Charter, c. 34: “Breve quod vocatur Praecipe de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam suam.” Glanvill, i. 5, allows the king to issue this writ whenever he pleases. Had this prerogative been maintained, the horrible tangle of our “real actions,” our “writs of entry” and so forth, would never have perplexed us.

[123 ] Ibid. c. 41, 13.

[124 ] In after days it was possible for men to worship the words “nisi per legale iudicium 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 iudicium 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. lxvii. 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 iudicium parium, see Stubbs, Const. Hist. i. 578.

[1 ] Glanvill, vii. 1: “secundum ius regni.”

[2 ] Charter, 1215, c. 45: “qui sciant legem regni.”

[3 ] Ibid. 1215, c. 39: “per legale iudicium parium suorum vel per legem terrae.” Bracton, f. 128 b: “utlagatus rite et secundum legem terrae.” Ibid. f. 127 b: “ante aetatem duodecim annorum non erit quis sub lege, et prius extra legem poni non poterit.” Ibid. f. 147: “secundum legem Romanorum, 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 deues.”

[6 ] Thus in the count on a writ of right, “Peto terram ut ius et hereditatem meam . . . pater meus fuit seisitus ut de iure . . . et de eo descendit ius . . . et quod hoc est 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, Prologus: “Leges namque Anglicanas, licet non scriptas, leges appellari non videtur absurdum.” Bracton, f. 1.

[9 ] Bracton, f. 1: “Habent enim Anglici plurima ex consuetudine quae non habent ex lege.”

[10 ] Dialogus, ii. 21: “Decrevit enim rex illustris.” Hoveden, iii. 299: “Edictum regium.” Dialogus, ii. 1: “ex novella constitutione, hoc est post tempora regis Henrici primi.” Glanvill, ii. 7: “Est autem magna assisa regale quoddam beneficium, clementia principis de consilio procerum populis indultum . . . legalis ista institutio [al. regalis ista constitutio].” Bracton, f. 96: “sed nova superveniente gratia et provisione.”

[11 ] Proclamation of the king’s acceptance of the Provisions of Oxford (Select Charters): “and to werian þo isetnesses þæt beon imakede.”

[12 ] 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. 104.

[13 ] Dialogus, ii. 10: “Propter solam regis assisam sic esse cognoscas; nec enim est qui regiae constitutioni, quae pro bono pacis fit, obviare praesumat.”

[14 ] Bracton, f. 1 b: the contrast is between mutari and in melius converti.

[15 ] 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.

[16 ] c. 32, X. 2. 20: “tam de communi iure, quam de consuetudine generali Anglicanae ecclesiae.”

[17 ] Sarum Charters, p. 89.

[18 ] 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 iure 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: “Iudaei romano et communi iure viventes.”

[19 ] Sarum Charters, p. 320: “Nos vero . . . ius commune pro ecclesia de Preschut faciens considerantes.”

[20 ] Dialogus, i. 11: “Legibus quidem propriis subsistit; quas non communi regni iure, sed voluntaria principum institutione subnixas dicunt.” Ibid. ii. 22: “communis lex.”

[21 ] Thus Y. B. 21–22 Edw. I. contrasts common law with statute (pp. 55–56, 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 Rex placitare potest per breve magis conveniens legi communi quam hoc breve.” Rot. 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. 20–21 Edw. I. p. 55: “You put forward no espessyalté. ”

[22 ] Bracton, f. 17 b: “Modus enim legem dat donationi et modus tenendus est contra ius commune et contra legem, quia modus et conventio vincunt legem . . . Bene poterit donator . . . legem imponere donationi . . . contra legem terrae.” Ibid. 19 b: “Item poterit conditio impedire descensum ad proprios heredes contra ius commune.” Ibid. 48 b: “Item poterit donator ex speciali conventione contra ius commune conditionem suam meliorem facere in causa donationis.”

[23 ] Early instances of the use of the term in a more or less technical sense are these. Foedera, i. 266, a writ of 1246: “Rex vult quod omnia brevia de communi iure quae currunt in Anglia similiter currant in Hibernia.” Provisions of Oxford (1259): “de sectis autem quae . . . subtractae fuerunt currat lex communis (curge la commune lei)”:—“habeat rationabilem summonitionem secundum communem legem terrae (solum la commune lei).” According to a story told in the Burton Annals, p. 210, when John asked the papal legates what they wanted, they replied, “Nil nisi ius commune”; this seems to mean, “Nothing but common justice.” See further as to the history of this phrase, Clark, Practical Jurisprudence, p. 70.

[24 ] The Leges Edwardi and one set of the Leges Willelmi (Hic intimatur) 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 Æthelstan.

[25 ] After 1225 but before Edward’s confirmation in 1297 a change was made in, or crept into, the clause which defines the amount of the relief; the baron’s relief was reduced from 100 pounds to 100 marks. See Bémont, Chartes des libertés anglaises, pp. xxxi. 47–48. The text of the various editions can be best compared in this excellent book.

[26 ] Statutes of the Realm, i. 6.

[27 ] Statutes, i. 1; Note Book, i. 104.

[28 ] Statutes, i. 8.

[29 ] Stat. Marlb. (Statutes, i. 19): “convocatis discrecioribus eiusdem regni tam ex maioribus quam minoribus, provisum est et statutum 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.

[30 ] Statutes of the Realm, i. 12.

[31 ] Ibid. p. 7; Note Book, i. 43.

[32 ] 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.

[33 ] 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 Roll 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 important ordinance of 1255 against alienation, recently discovered on the Close Roll by Mr. Turner and printed by him in L. Q. R. 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.

[34 ] Rob. Grosseteste Epistolae, p. 96: Grosseteste to Raleigh: “nec tam idiota sum quod credam ad alicuius suggestionem te vel alium sine principis et magnatum consilio posse leges condere vel commutare.”

[35 ] For this see Giraud, Histoire du droit français, 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 consuetudo Sabaudica.

[36 ] The ordinance is printed in the Select Charters. Mat. Par. v. 369: “praesertim cum tanta legis permutatio sine communi assensu barnagii constitui minime valuisset.”

[37 ] Bracton, f. 5 b, 107; Note Book, i. 29–33.

[38 ] Sidgwick, Elements of Politics, p. 21.

[39 ] Kingsford, Song of Lewes, pp. 103–4, 113–18.

[40 ] This matter will be discussed below when we speak of the King and the Crown.

[41 ] Mat. Par. iii. 337–38. 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 cannot have had any warrant in English precedents, was borrowed from Germany, where men were asserting that a court presided over by the Pfalzgraf might even adjudge the Emperor to death; Schröder, D. R. G., 468.

[42 ] Bracton, f. 171 b. The question whether the violent passage on f. 34 comes from Bracton has been discussed elsewhere; see Note Book, i. 29–33.

[43 ] Bracton, f. 107 b: “Dum facit iustitiam, vicarius est Regis Eterni, minister autem diaboli dum declinat ad iniuriam.”

[44 ] Bracton, f. 1 b: “Si autem aliqua nova et inconsueta emerserint et quae prius usitata non fuerint in regno, si tamen similia evenerint, per simile iudicentur, cum bona sit occasio a similibus procedere ad similia. Si autem talia nunquam prius evenerint, et obscurum et difficile sit eorum iudicium, tunc ponantur iudicia in respectum usque ad magnam curiam, ut ibi per consilium curiae terminentur.” 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.

[45 ] Bracton, f. 1, 2.

[46 ] Note Book, pl. 1213: the Earl of Chester appeals to cases concerning other palatine earls. Ibid. pl. 1227: in the exceedingly important case raising the question whether a palatinate can be partitioned, the magnates reject foreign precedents; “nec voluerunt iudicare per exempla usitata in partibus transmarinis.” In 1291 the Earl of Gloucester, being concerned in a case which raised an unusual question, asked the king that the rolls of Pateshull (ob. 1229) and of later judges might be searched for precedents, and a precedent was produced from 1248; Rot. Parl. i. 66–67. Of course the rolls were often produced to show that a concrete question was res iudicata; but this is quite another matter.

[47 ] See e.g. Y. B. 21–22 Edw. I. p. 146. Occasionally the appeal to a precedent is entered on the roll as the substance of the plea: Northumberland Assize Rolls, p. 223.

[48 ] Bracton, f. 1 b: “licet sint nonnulli qui de propria scientia praesumentes, quasi nihil iuris ignorent, nolunt alicuius consilium expetere.”

[49 ] Bracton, f. 1.

[50 ] For an instance of a custom that is declared to be unlawful, see Northumberland Assize Rolls, p. 353: “illa consuetudo omnino est contra omnes leges.”

[51 ] Bracton, f. 329. The procedure of the feudal courts in respect of such matters as summons and essoins may differ from that of the king’s court, but as regards warranty, pleading, and battle the rules of the king’s court must be observed.

[52 ] Bracton’s Note Book, pl. 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.

[53 ] Bracton, f. 85 b : “licet in quibusdam partibus et per abusum observetur in contrarium, sicut in episcopatu Wintoniae”; Note Book, pl. 282.

[54 ] Note Book, pl. 623: “talis est consuetudo in feodo Comitis Britanniae.”

[55 ] Royal 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.

[56 ] Select Pleas in Manorial Courts, p. 3.

[57 ] More will be said of the borough customs in a later chapter.

[58 ] Gross, Gild Merchant, i. 259.

[59 ] Note Book, pl. 1644: “secundum legem Kantiae.”

[60 ] Statutes, i. 223.

[61 ] Elton, Tenures of Kent, p. 29. In the form gavelingude the word occurs on our earliest plea roll; Rolls of King’s Court (Pipe Roll Soc.), p. 43.

[62 ] Statutes, i. 223; Y. B. 30–31 Edw. I. p. 168.

[63 ] In Domesday Book and older charters Kent is distinguished by peculiar land measures, the sulung 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.

[64 ] Among the ancient features we may reckon the allotment of the “aster” or hearth to the youngest son, and the peculiar ninefold 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, pl. 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.

[65 ] Statutes, i. 225.

[66 ] Note Book, pl. 1338, 1644.

[67 ] 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.”

[68 ] 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, 73–78.

[69 ] The case as to the partition of the Chester palatinate; see above, p. 195.

[70 ] Bracton, f. 1.

[71 ] Note Book, i. pp. 104–115. We have no authoritative text of this famous resolution; but the last word of it seems to have been mutare, not mutari.

[72 ] Delisle, Recueil de jugements, p. 139: “Judicatum est quod ille qui natus fuit ante sponsalia sive post est propinquior heres ad habendam hereditatem patris . . . si sancta ecclesia approbet maritagium.”

[73 ] Rob. Grosseteste Epistolae, 76–97. Grosseteste (p. 97) writes to Raleigh: “Induxistis testimonium Ricardi de Luci; cuius testimonium quantam et qualem habeat comparationem ad testimonia divinae scripturae et canonicae contrarium testificantia, lippis patet et tonsoribus.” The arguments which Grosseteste adduces from the Bible and the law of nature are very curious; however, he seems to expressly disclaim the notion that the king’s justices could desert their ungodly precedents in favour of divine and natural law until the law of England had been changed by king and magnates.

[74 ] Brunner, D. R. G. ii. 135–36.

[75 ] Glanvill, vii. 1: “aliquando tamen super hoc ultimo casu in curia domini Regis de consilio curiae ita ex aequitate consideratum est.” Note Book, pl. 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. 30–31 Edw. I. 120.

[76 ] 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.

[77 ] Madox, Exchequer, ii. 51.

[78 ] Fleta, p. 82.

[79 ] Foss, Judges, iii. 196.

[80 ] Madox, Exchequer, ii. 54.

[81 ] 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.

[82 ] Fleta, p. 81: “Habet etiam Rex curiam suam et iustitiarios suos in Scaccario apud Westmonasterium residentes.”

[83 ] Madox, Exchequer, ii. 295.

[84 ] 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.

[85 ] Hughes, The Parliament of Lincoln, Trans. Roy. Hist. Soc. ix. 41.

[86 ] 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.

[87 ] The curious point is that in this matter the barons seem to have acted in defiance not merely of laws and ordinances but of the king’s own interests. Whether the well-known phrase in the Charter (“Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo”) was originally intended to deprive the exchequer of jurisdiction over common pleas is doubtful; but that intention was authoritatively attributed to it in Edward I.’s day. We find Edward laying down the prohibitive rule not merely in the Articuli of 1300 (Statutes, i. 138), some of which were won from him by pressure, but in a much earlier ordinance, the so-called Statute of Rhuddlan (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. 73–76.

[88 ] Fleta, p. 66: “Habet etiam [Rex] curiam suam in cancellaria sua.”

[89 ] Stubbs, Const. Hist. i. p. 381.

[90 ] The term magistri when applied to the masters in chancery seems at first merely to mark them as men with university degrees. But they were also praeceptores, for in certain cases they had power to order that a writ should issue; Fleta, p. 77. Apparently the class of writs known as magistralia consists of those which must be settled by one of the magistri; Bracton, f. 413 b. Edward I. had two apostolic notaries in his chancery, John Arthur of Caen and John Busshe. The series of masters of the rolls goes back to the early years of Edward’s reign. The master of the rolls is the chancellor’s principal subordinate.

[91 ] Mat. Par. Chron. Maj. v. 130.

[92 ] 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.

[93 ] Articuli super cartas, 1300, c. 6 (Statutes, i. 139).

[94 ] The large collection of privy seal writs in the Record Office begins in Edward I.’s reign.

[95 ] Maitland, Memoranda de Parliamento, 33 Edward I., p. xxxvii.

[96 ] The stages by which the chancery ceased as a matter of fact to be a peripatetic office, following the king in his progresses, have never yet been accurately ascertained; but it seems probable that Chancellor Burnel made some noteworthy change in 1280; Annales Monastici, ii. 393, iv. 477.

[97 ] The best introduction to them will be found in Bémont, Rôles Gascons (Documents inédits), Paris 1896.

[98 ] 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.

[99 ] Harv. L. R., iii. 175.

[100 ] Excerpta e Rotulis Finium, i. 29, 49, 62, 68; Harv. L. R., iii. 12.

[101 ] Fleta, p. 77.

[102 ] Fleta, p. 77; Excerpta e Rotulis Finium, ii. 101.

[103 ] Fleta, p. 77–78.

[104 ] Bracton, f. 413 b–414 b.

[105 ] Harv. L. R., iii. 173, 174, 176.

[106 ] Mat. Par. Chron. Maj. iii. 364, 491, 495, 530.

[107 ] Ibid. iii. 629; v. 594.

[108 ] This begins as early as 1244; ibid. iv. 363, 367; vi. 363.

[109 ] Ann. Burton, 448.

[110 ] Placita de Quo Warranto, 681, 686: writs brought by the king are quashed by the judges. Rolls 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.

[111 ] Royal Letters, i. 68, 276, 282; ii. 48.

[112 ] Hale, Jurisdiction of the House of Lords, 47; Blackstone, Comm. iii. 48.

[113 ] See Rolls of Parliament, vol. i. passim, and Maitland, Memoranda de Parliamento, 33 Edward I. An instance of a case committed to the chancellor occurs in Rolls 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 this had been done, a writ of execution would issue from the chancery in the creditor’s favour. Fleta, p. 76, mentions this as a case in which a “judicial” writ issues from the chancery. But here originally there was little to be called jurisdiction, for the creditor who had a recognizance had in theory what was equivalent to a judgment in his favour, and execution would issue as a matter of course. It is probable that in dealing with the king’s wards the chancery exercised something like jurisdiction, e.g. by deciding that full age had or had not been attained, by allotting dower to widows and making partition among co-heirs; but on the whole this (like much of the work done in the Chancery Division to this day) is the work of an administrative office rather than of a tribunal.

[114 ] Above, p. 163.

[115 ] Select Pleas of the Crown (Selden Soc.), pp. xiii–xix.

[116 ] Note Book, i. pp. 56–58.

[117 ] Charter, 1215, c. 17.

[118 ] It is of comparatively late origin. There are many criminal cases on the de banco rolls of Edward I.

[119 ] Note Book, pl. 1166, 1189, 1190.

[120 ] 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. 160–86), 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.”

[121 ] Hale, Jurisdiction of the House of Lords, p. 53.

[122 ] The problem for the fourteenth century is neatly raised by the words of Fleta, p. 66: “Habet enim Rex curiam suam in concilio suo in parliamentis suis, praesentibus praelatis, comitibus, 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. lxxix.

[123 ] Thus Cambridge gaol seems to have been delivered about twenty-four times in seven years, beginning with 2 Edw. I., the deliverers being usually Cambridgeshire knights. Reports of Dep. Keeper, xliii–xlix.

[124 ] Bracton took Devonshire assizes at Exeter, Morchard, Molton, Torrington, Chulmleigh, Barnstaple, Umberleigh; Note Book, i. p. 17.

[125 ] Calendar of Patent Rolls in 43rd Rep. of Dep. Keeper.

[126 ] During 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. 141–42.

[127 ] As to these articles see Select Pleas of the Crown (Selden Soc.), p. xxii. More of them in our section on Trespasses.

[128 ] The proceedings of an eyre can be best studied in Page, Three Assize Rolls for Northumberland (Surtees Society), and in the rolls which Mr. Chadwyck Healey is publishing for the Somersetshire Record Society.

[129 ] Bishops were largely employed in the first eyre of the reign. In 1236 the appointment of an abbot is a scandal; Rob. Grosseteste, Epistolae, pp. 105, 108.

[130 ] Ann. Dunst. p. 135 (1233): “quorum metu omnes ad silvas fugerunt.”

[131 ] Ann. Wigorn. p. 446 (1261). Close Roll, Hen. III. No. 77, m. 9 d: an eyre in Norfolk is postponed as seven years have not elapsed since the last eyre.

[132 ] A “nisi prius” clause was occasionally used as early as 1225; see Not Book, pl. 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.

[133 ] Mat. Par. v. 213, 223, 240, charges against Henry of Bath; v. 628, against Henry de la Mare.

[134 ] Charter, 1215, c. 34.

[135 ] 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 unde 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.

[136 ] Bracton, f. 106, a defence of dower unde nihil habet; f. 281, a defence of the writ of cosinage; comp. Note Book, pl. 1215.

[137 ] Bracton, f. 414 b: “pertinet enim ad regem ad quamlibet iniuriam compescendam remedium competens adhibere.”

[138 ] Note Book, i. pp. 144–45.

[139 ] Foss, 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 Rege tenenda.” So long as Latin is used, a justice is a iusticiarius, a chief justice is a capitalis iusticiarius. In the twelfth century iustitia had been the commoner title.

[140 ] Foss, Judges, iii. 142, makes Gilbert Preston the first chief justice of the common pleas.

[141 ] Note Book, i. pp. 24–25.

[142 ] Mat. Par. Chron. Maj. iii. 293.

[143 ] cc. 1, 2, 4, 5, 10, X. 3, 50. Ann. Burton. p. 308–9: Articles of inquiry into the life of the clergy; “An aliqui sint . . . iustitiarii saeculares . . . An aliqui beneficiati audiant vel doceant leges saeculares.” Grosseteste, Epist. p. 266: Robert Lexington has piled irregularity upon irregularity by hearing criminal causes on Sunday. From another letter (p. 106) we learn that a clerical justice would salve his conscience by leaving the bench when a sentence of death was to be passed. The clerks who write the plea rolls have scruples about writing the word “suspendatur”:—“et ideo habeat iudicium suum,” or simply “et ideo etc.” will be quite enough.

[144 ] Mat. Par. Chron. Maj. iv. 49: “Thomas de Muletuna, miles in armis cum iuventus ei arridebat, et cum provectioris esset aetatis abundans possessionibus legisque peritus saecularis.” Ibid. v. 317: “Rogerus de Thurkebi miles et literatus.”

[145 ] 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 to Simon Pateshull (see above, p. 180), that William Raleigh was Martin’s clerk (Maitland, Gloucestershire Pleas of the Crown, p. xiii), that Bracton was Raleigh’s clerk and thus inherited the rolls that he used. William of York had been a clerk in the chancery: “I raised you from the depths; you were the scribbler of my writs, a justice and a hireling,” says King Henry; Mat. Par. Chron. Maj. v. 374.

[146 ] See Bracton’s Note Book; also Bracton and Azo (Selden Soc.).

[147 ] Bracton’s Note Book, vol. i. The discovery was due to Prof. Paul Vinogradoff.

[148 ] See Güterbock, Henricus de Bracton; Scrutton, Roman Law in England; Bracton and Azo (Selden Soc.).

[149 ] The nearest approach to an admission that Roman law may be employed to eke out English law is to be found on a roll of 1237–38, Note Book, pl. 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 have seen no such case in iure scripto (i.e. in Roman 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. Ricardus Rex Alemanniae (he was Rex Romanorum semper augustus) was impleaded for a novel disseisin; Placit. Abbrev. p. 145.

[150 ] Abbrev. Placit. p. 128: “nunquam se dimisit de terra illa corpore nec 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.

[151 ] Bracton, f. 2 b, 3: “Ius dicitur ars boni et aequi, cuius merito quis nos sacerdotes appellat: iustitiam namque colimus et sacra iura ministramus.” This old phrase (Dig. 1. 1. 1) is no cant in Bracton’s mouth; he feels that he is a priest of the law, a priest for ever after the order of Ulpian.

[152 ] Note Book, i. 104–116.

[153 ] For the anti-feudal inclination see the argument in favour of free alienation; Bracton, f. 45 b–46 b. 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 cannot 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 placuit.”

[154 ] Selden, Dissertatio ad Fletam, p. 456.

[155 ] Nichols, Introduction to his edition of Britton.

[156 ] Walter of Henley, ed. Lamond and Cunningham.

[157 ] Brevia Placitata, now being edited by Mr. G. I. Turner.

[158 ] The Court Baron (Selden Soc.), Introduction.

[159 ] See the edition of Walter of Henley cited above.

[160 ] Select Pleas in Manorial Courts (Selden Soc.), Introduction.

[161 ] Brunner, Forschungen, p. 389; Brunner, D. R. G. ii. 349.

[162 ] Leg. Henr. 46, 47, 48, 49, 61 § 18, 19.

[163 ] Leg. Henr. 46 § 3: “Bonum autem est, ut cum alicuius consilium in placito redditur, cum emendatione dicendum praedicatur, ut si forte perorator vel superadiecerit aliquid, vel omiserit, emendare liceat ei. Saepe enim fit, ut in sua causa quis minus videat quam in alterius, et in ore alterius plerumque poterit emendare quod in suo non liceret.”

[164 ] Note Book, pl. 298. So in pl. 131: “deadvocat quod narrator suus pro eo narravit.” So in pl. 1106: “Alanus de Waxtonesham qui narravit pro Eustachio in misericordia, quia Eustachius deadvocavit id quod pro eo narravit.”

[165 ] The Court Baron (Selden Soc.), p. 41. References to this practice may be found in the Year Books, e.g. Y. B. 33–35 Edw. I., pp. 297, 458.

[166 ] Mat. Par. Chron. Maj. iii. 124. It is noticed as somewhat strange that in 1227 the king’s brother Earl Richard of Cornwall should urge his claims before the king “sine aliquo advocato rationabiliter simul et eloquenter.”

[167 ] Glanvill, lib. xi.

[168 ] See Stat. West. II. c. 10, which gave a general right to appoint an attorney to appear in all causes which should come before the justices in a given eyre.

[169 ] Registrum Brevium Originalium, ff. 20–22.

[170 ] Britton, vol. ii. p. 357.

[171 ] Select Civil Pleas, pl. 141.

[172 ] Note Book, pl. 342, 1361, 1507.

[173 ] See above, p. 168.

[174 ] Gesta Abbatum, i. 136: “Robertus [Abbas S. Albani] . . . Magistrum Ambrosium, clericum suum, legis peritissimum, Italicum natione (de primis tempore, scientia et moribus, Angliae legis peritis) Romam . . . destinavit.” See also Liebermann, E. H. R. xi. 313–14.

[175 ] On 31 March, 1163, Glanvill appeared along with Anesty at Windsor; at Michaelmas in that year he became sheriff of Yorkshire.

[176 ] Mat. Par. Chron. Maj. iii. 111: “Ricardus de Marisco Dunelmensis episcopus . . . cum tumultu valido reboantium legistarum.” Ibid. 531: “Miserat enim [rex] ad curiam Romanam unum legistarum suorum, quorum magnam catervam retinuit, quasi venator canes venaticos, super electores praelatorum discopulandos, videlicet Simonem Normannum.” Ibid. 268, “Rogerum de Cantelu legistam”; 483, “Magister Odo [de Kilkenny] legista”; 491, “legistas suas Romipedas”; 491, “Simonem Normannum et Alexandrum Saecularem legistas conductitios”; iv. 266, “Alexandrum legistam, cognomento Saecularem.”

[177 ] See above, p. 130.

[178 ] Thus, iii. 190, Pateshull is “legum terrae peritus”; iii. 525, Raleigh is “legum terrae peritissimus”; iv. 49, Multon is “legis peritus”; iv. 587, William of York is “legum regni peritissimus.”

[179 ] Mat. Par. Chron. Maj. iii. 619: “licet Rex 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 forspeaker.

[180 ] Madox, Exchequer, i. 236.

[181 ] Liber de Antiquis Legibus, 42–43.

[182 ] Mat. Par. Chron. Maj. iii. 439–40; Joh. de Athona, p. 70.

[183 ] Stat. West. I. c. 29.

[184 ] Rolls of Parliament, i. 84.

[185 ] So early as 1253 the Bishop of Rochester was impleaded by the Archbishop of Canterbury in the king’s court, “et Abell de S. Martino venit et narravit pro episcopo et non fuit advocatus; ideo in misericordia”; Placit. Abbrev. 137. We cannot 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.

[186 ] Liber Custumarum, i. 280 (ad 1280).

[187 ] Cart. Rams. i. 428.

[188 ] Pleas in Manorial Courts (Selden Soc.), 155, 159, 160.

[189 ] Walter of Hemingford (ed. Hearne), ii. 208, tells how in 1304 the Abp. of York was impleaded. “None of his counsel nor any of all the pleaders (narratores) could or dared answer for him. So in his own person, like one of the people, and before all the people, he made his answer bareheaded:—for the men of the court did not love him.”

[190 ] See e.g. Y. B. 30–31 Edw. I. p. 107.

[191 ] Y. B. 33–35 Edw. I. p. 471. The allusion is to Cod. 3. 31. 11: “Cogi possessorem ab eo, qui expetit, titulum suae possessionis dicere, incivile est.”

[192 ] Y. B. 33–35 Edw. I. p. 9; 30–31 Edw. I. p. 57; 21–22 Edw. I. 295.

[193 ]De regulis iuris, in vi to.

[194 ] Britton (ed. Nichols), ii. 65.

[195 ] Constitutions of Otho (1237), Mat. Par. iii. 438; Joh. de Athona, p. 67: “Quoniam tabellionum usus in regno Angliae non habetur.” See Selden, Titles of Honour, Works, ed. 1726, vol. iii. pp. 131–32, 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. R. vii. 66. We must remember, however, that a mercantile bond should be so attested that it will be valid in foreign courts.

[196 ] Foedera, i. 784: “Ego Johannes Erturi de Cadomo apostolicae sedis auctoritate notarius.” This John Arthur of Caen was a master of the chancery.

[197 ] 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, quae secundum formam Romanae curiae vel idoneam aliam qualemcunque intellectum et notitiam habeant eorum quae ad artem pertinent notariae.” From the ignorance of the English scribes “iudicibus obprobrium et partibus incommodum saepe proveniunt.” John of Bologna seems to have been employed by Peckham and to have obtained a benefice in Wales: Peckham’s Register, i. 45, 278; iii. 1009.

[198 ] Maitland, A Conveyancer in the Thirteenth Century, L. Q. R. vii. 63; The Court Baron (Selden Soc.), pp. 7, 12–14.

[199 ] A good specimen is given in Mat. Par. iii. 329; but many may be found elsewhere.

[200 ] Y. B. 30–31 Edw.: “Defaute de bon serjant fet B perdre sez deniers.”

[201 ] Leg. Henr. 46 § 3.

[202 ] Statutes, i. 55.

[203 ] Note Book, pl. 1474.

[204 ] Royal Letters, Henry III., vol. ii. p. 353: “Vestram rogamus regiam dignitatem quatenus . . . leges terrarum vestrarum ubique per Walliam et per Marchiam nobis concedere velitis, et hoc est, quod innocens non puniatur pro nocente, nec etiam imputetur parentelae alicuius si aliquis de parentela interfecerit aliquem vel furtum vel aliquam seditionem [fecerit] nisi ipsi malefactori.”

[205 ] 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.

[206 ] 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.

[207 ] Memoranda de Parliamento, 33 Edw. I. pp. 253–54.

[208 ] Acts of Parliament of Scotland, i. 413; Neilson, Trial by Combat, 126.

[209 ] In Acts of Parliament of Scotland, vol. i, Regiam Maiestatem is collated with Glanvill. The present state of the question as to its date may be gathered from Neilson, Trial by Combat, pp. 99–104. Of all the various theories that have been started, that which ascribes this book to Edward I. 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.

[210 ] Schröder, D. R. 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.