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CHAPTER III: Norman Law 1 - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 1 
The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1.
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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.
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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.
[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 xiiime 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 xiime 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.