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CHAPTER II: The Sorts and Conditions of Men - 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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The Sorts and Conditions of Men
Law of personal condition.Of the divers sorts and conditions of men our law of the thirteenth century has much to say; there are many classes of persons which must be regarded as legally constituted classes. Among laymen the time has indeed already come when men of one sort, free and lawful men (liberi et legales homines) can be treated as men of the common, the ordinary, we may perhaps say the normal sort, while men of all other sorts enjoy privileges or are subject to disabilities which can be called exceptional. The lay Englishman, free but not noble, who is of full age and who has forfeited none of his rights by crime or sin, is the law’s typical man, typical person. But besides such men there are within the secular order noble men and unfreemen; then there are monks and nuns who are dead to the world; then there is the clergy constituting a separate “estate”; there are Jews and there are aliens; there are excommunicates, outlaws and convicted felons who have lost some or all of their civil rights; also we may here make mention of infants and of women, both married and unmarried, even though their condition be better discussed in connexion with family law, and a word should perhaps be said of lunatics, idiots and lepers. Lastly, there are “juristic persons” to be considered, for the law is beginning to know the corporation.
But if for a while we fix our attention on the lay order, it may seem to us that, when compared with the contemporary law of France or at any rate of Germany, our law of status is poor: in other words, it has little to say about estates or ranks of men. Men are either freemen or serfs; there is not much more to be said. When compared with tenure, status is unimportant.
Status and estate.This much we might learn from the history of a technical term. Our modern English writers on jurisprudence are constantly put to shifts for a word which shall translate the Latin status and frequently have to leave it untranslated; estate would make us think of rights in land, and condition also has hard work to do in our law of property and of obligations. The fate in England of the word status or estate is very curious. Bracton could still sharply oppose it to rights in land. A favourite maxim of his is that a man’s free or villein tenure of a tenement does not affect his free or villein estate.1 But very soon after his death we hear of a man having a status in fee simple or a status for life, and though such a phrase as “the three estates of the realm” may endure, and our church may bid us pray “for all estates of men,” still the English lawyer when he hears of estates will think first of rights in land, while the English layman will, like enough, think of land itself, of fields and houses. This means that our land law has been vastly more important than our law of ranks. And so it is at an early time; we read much more in the law-books of tenants by knight’s service, serjeanty, burgage, socage, than of knights, serjeants, burgesses and sokemen; nay, even the great distinction between bond and free is apt to appear in practice rather as a distinction between tenures than as a distinction between persons.
The Earls and Barons
The baronage.Our law hardly knows anything of a noble or of a gentle class; all freemen are in the main equal before the law. For a moment this may seem strange. A conquered country is hardly the place in which we should look for an equality, which, having regard to other lands, we must call exceptional. Yet in truth it is the result of the Conquest, though a result that was slowly evolved. The compiler of the Leges Henrici would willingly have given us a full law of ranks or estates of men; but the materials at his command were too heterogeneous: counts, barons, earls, thegns, Norman milites, English radknights, vidames, vavassors, sokemen, villeins, ceorls, serfs, two-hundred men, six-hundred men—a text writer can do little with this disorderly mass. But a strong king can do with it what he pleases; he can make his favour the measure of nobility; they are noble whom he treats as such. And he does not choose that there shall be much nobility. Gradually a small noble class is formed, an estate of temporal lords, of earls and barons. The principles which hold it together are far rather land tenure and the king’s will than the transmission of noble blood. Its members have political privileges which are the counterpart of political duties; the king consults them, and is in some sort bound to consult them, and they are bound to attend his summons and give him counsel. They have hardly any other privileges. During the baron’s life his children have no privileges; on his death only the new baron becomes noble.
Privileges of the barons.The privileges of the earl or the baron are, we say, extremely few. Doubtless from of old every freeman was entitled to be judged by his peers:2 that is to say, he was entitled to insist that those who were to sit as his judges should not be of a legal rank lower than his own. Under the dominance of the law of tenure this rule would take the form that a vassal is not to be judged by sub-vassals. So long as the king’s court was a court of tenants in chief any man would have found there those who were at least his equals, and even in a county court there would have been barons enough to judge any baron. As the administration of royal justice gradually became the function of professional lawyers, the cry for a iudicium parium was raised by the nobles, and in words this was conceded to them.3 For a long time, however, the concession had no very marked effect, because the court held coram Rege, though for every-day purposes but a bench of professional justices, might at any moment assume a shape to which no baron could have taken exception; even a parliament to which all the barons had been summoned might still be regarded as this same court taking for the nonce a specially solemn form. And the meaning of the rule was not very plain. On the one hand, we hear the assertion that even in civil suits the earl or baron should have the judgment of his peers,4 on the other hand Peter des Roches, the king’s minister, can say that the king’s justices are the peers of any man,5 and the very title of the “barons” of the exchequer forbids us to treat this as mere insolence. And so Bracton gives us no doctrine as to the privilege of the barons. He does recognize the distinction between the king’s court of justices and the king’s court of “peers,” but for the sake of a quite other doctrine, which left but few traces in later law. When there is a charge of treason, the king himself is the accuser, and life, limb and inheritance are at stake; therefore it is not seemly that the king, either in person or by his justices, who represent his person, should be judge; so Bracton throws out the suggestion that the cause should come before the “peers.”6 We have here no privilege of peerage, but a special rule for all cases of high treason, based on the maxim that no one should be judge in his own cause. Under the Edwards the privilege of peerage was gradually ascertained, as the court of law held coram Rege, which by this time was known as the King’s Bench, became more utterly distinct from the assembly of the barons. But in the end the baron had gained very little. If charged with treason or felony, he was tried by his peers; if charged with a misdemeanour (transgressio), if sued in a civil suit by high or low, if the king challenged his choicest franchises, there was no special court for him; he had to abide the judgment of the king’s justices.7 A certain freedom from arrest in civil causes we may perhaps allow him; but in Bracton’s age arrest in civil causes was as yet no common event. That the tenant in chief could not be excommunicated without the king’s leave was a privilege of the king rather than of the baronage. One other privilege the baron had, but it was of questionable value. When he was adjudged to be in the king’s mercy, the amount of the amercement was fixed, or “affeered,” not by his merely “free and lawful” neighbours but by his peers. For this purpose, however, his peers were found in the “barons” of the exchequer8 and these experts in finance were not likely to spare him.9 There are a few little rules of procedure which distinguish the noble from the non-noble. Thus we are told that a summons to court should allow an earl one month, a baron three weeks, a freeman a fortnight;10 and we may see some traces of a rule which exempts a baron from the necessity of swearing.11 Even the members of the king’s family are under the ordinary law, though in their “personal” actions they have the same benefit of expeditious procedure that is enjoyed by merchants.12 Very different is the case of the king, who in all litigation “is prerogative.”
The knights.Below the barons stand the knights; the law honours them by subjecting them to special burdens; but still knighthood can hardly be accounted a legal status. In the administration of royal justice there is a great deal of work that can be done only by knights, at all events if there are knights to be had. Four knights, twelve knights, are constantly required as representatives of the county court or as recognitors. For some purposes mere free and lawful men will serve, for others knights must be employed. On the whole we may say that knights are required for the more solemn, the more ancient, the more decisive processes. To swear to a question of possession, free and lawful men are good enough; to give the final and conclusive verdict about a matter of right, knights are needed. They are treated as an able, trustworthy class; but we no longer find any such rule as that the oath of one thegn is equivalent to the oath of six ceorls. In administrative law therefore the knight is liable to some special burdens; in no other respect does he differ from the mere freeman. Even military service and scutage have become matters of tenure rather than matters of rank, and, though the king may strive to force into knighthood all men of a certain degree of wealth, we have no such rule as that none but a knight can hold a knight’s fee. Still less have we any such rule as that none but a knight or none but a baron can keep a seignorial court.
The unfree.In the main, then, all freemen are equal before the law. Just because this is so the line between the free and the unfree seems very sharp. And the line between freedom and unfreedom is the line between freedom and servitude.13 Bracton accepts to the full the Roman dilemma: Omnes homines aut liberi sunt aut servi.14 He will have no mere unfreedom, no semi-servile class, no merely praedial serfage, nothing equivalent to the Roman colonatus.15 All men are either freemen or serfs, and every serf is as much a serf as any other serf.16 We use the word serf, not the word slave; but it is to be remembered that Bracton had not got the word slave. He used the worst word that he had got, the word which, as he well knew, had described the Roman slave whom his owner might kill. And the serf has a dominus; we may prefer to render this by lord and not by master or owner, and it is worthy of observation that medieval Latin cannot express this distinction; if the serf has a dominus, the palatine earl, nay, the king of England, so long as he is duke of Aquitaine, has a dominus also, and this is somewhat in the serf’s favour; but still Bracton uses the only words by which he could have described a slave and a slave-owner. True that servus is neither the commonest nor yet the most technical name for the unfreeman; more commonly he is called villanus or nativus, and these are the words used in legal pleadings; but for Bracton these three terms are interchangeable, and though efforts, not very consistent or successful efforts, might be made to distinguish between them,17 and some thought it wrong to call the villeins serfs,18 still it is certain that nativus always implied personal unfreedom, that villanus did the same when employed by lawyers, and that Bracton was right in saying that the law of his time knew no degrees of personal unfreedom. Even in common practice and by men who were not jurists the word servus was sometimes used as an equivalent for nativus or villanus. The jurors of one hundred will call all the unfree people servi, while in the next hundred they will be villani.19 In French villein is the common word; but the feminine of villein is nieve (nativa).20
General idea of serfage.There are no degrees of personal unfreedom; there is no such thing as merely praedial serfage. A freeman may hold in villeinage; but that is an utterly different thing; he is in no sort a serf; so far from being bound to the soil he can fling up his tenement and go whithersoever he pleases.21 In later centuries certain niceties of pleading gave rise to the terms “villein in gross” and “villein regardant,” and in yet later times, when villeinage of any kind was obsolescent, these were supposed to point to two different classes of men, the villein regardant being inseverable from a particular manor, while the villein in gross might be detached from the soil and sold as a chattel. The law of Bracton’s time recognizes no such distinction.22 As a matter of fact and a matter of custom, English serfage may well be called praedial. In the first place, it rarely if ever happens that the serfs are employed in other work than agriculture and its attendant processes; their function is to cultivate their lord’s demesne. In the second place, the serf usually holds more or less land, at least a cottage, or else is the member of a household whose head holds land, and the services that he does to his lord are constantly regarded in practice as the return which is due from him in respect of this tenement or even as the return due from the tenement itself; such services, as we have already seen, are often minutely defined by custom. In the third place, his lord does not feed or clothe him; he makes his own living by cultivating his villein tenement, or, in case he is but a cottager, by earning wages at the hand of his wealthier neighbours. In the fourth place, he is seldom severed from his tenement; he is seldom sold as a chattel, though this happens now and again;23 he passes from feoffor to feoffee, from ancestor to heir as annexed to the soil. For all this, the law as administered by the king’s court permits his lord to remove him from the tenement. It could hardly have done otherwise, for he held in villeinage, and even a freeman holding in villeinage could be ejected from his tenement whenever the lord pleased without finding a remedy before the king’s justices. But as to the serf, not only could he be removed from one tenement, he could be placed in another; his lord might set him to work of any kind; the king’s court would not interfere; for he was a servus and his person belonged to his lord; “he was merely the chattel of his lord to give and sell at his pleasure.”24
Relativity of serfage.But, whatever terms the lawyers may use, their own first principles will forbid us to speak of the English “serf” as a slave: their own first principles, we say, for what we find is not a general law of slavery humanely mitigated in some details, but a conception of serfdom which at many points comes into conflict with our notion of slavery. In his treatment of the subject Bracton frequently insists on the relativity of serfdom. Serfdom with him is hardly a status; it is but a relation between two persons, serf and lord. As regards his lord the serf has, at least as a rule, no rights; but as regards other persons he has all or nearly all the rights of a freeman; it is nothing to them that he is a serf.25 Now this relative serfdom we cannot call slavery. As regards mankind at large the serf so far from being a mere thing is a freeman. This seems to be the main principle of the law of Bracton’s day. We must now examine each of its two sides: the serfs rightlessness as regards his lord, his freedom or “quasi-freedom” as regards men in general. It will then remain to speak of his relation to the state.
(1)The serf in relation to his lord.In relation to his lord the general rule makes him rightless. Criminal law indeed protects him in life and limb. Such protection however need not be regarded as an exception to the rule. Bracton can here fall back upon the Institutes:—the state is concerned to see that no one shall make an ill use of his property.26 Our modern statutes which prohibit cruelty to animals do not give rights to dogs and horses, and, though it is certain that the lord could be punished for killing or maiming his villein, it is not certain that the villein or his heir could set the law in motion by means of an “appeal.”27 The protection afforded by criminal law seems to go no further than the preservation of life and limb. The lord may beat or imprison his serf, though of such doings we do not hear very much.28
Rightlessness of the serf.As against his lord the serf can have no proprietary rights. If he holds in villeinage of his lord, of course he is not protected in his holding by the king’s courts; but then this want of protection we need not regard as a consequence of his serfdom, for, were he a freeman, he still would be unprotected; and then, just as the freeman holding in villeinage is protected by custom and manorial courts, so the serf is similarly protected.29 His rightlessness appears more clearly as regards his chattels and any land that he may have acquired from one who is not his master. As regards any movable goods that he has, the lord may take these to himself. We hear indeed hints that his “wainage,” his instruments of husbandry, are protected even against his lord,30 and that his lord can be guilty against him of the crime of robbery;31 but these hints are either belated or premature; the lord has a right to seize his chattels. But it is a right to seize them and so become owner of them: until seizure, the serf is their owner and others can deal with him as such.32 As a matter of fact we hear little of arbitrary seizures, much of seizures which are not arbitrary but are the enforcement of manorial customs. The villeins are constantly amerced and distrained; the lord in his court habitually treats them as owners of chattels, he even permits them to make wills, and when they die he contents himself with a heriot.33 So here again, when we look at the facts, the serf’s condition seems better described as unprotectedness than as rightlessness, though doubtless a lord may from time to time seize goods without being able to justify the seizure by reference to custom. Then, if the serf acquires land from some third person to hold by free tenure, he whose serf he is may seize it and hold it; but until such seizure the serf is tenant and others may and must treat him as such.
Serfdom de iure and de facto.And then we find that all this rightlessness or unprotectedness exists only where serfdom exists de facto. The learning of seisin or possession and the rigid prohibition of self-help have come to the aid of the serfs. Serfdom and liberty are treated as things of which there may be possession, legally protected possession.34 A fugitive serf may somewhat easily acquire a “seisin” of liberty. When he is seised of liberty the lord’s power of self-help is gone; he can no longer capture the fugitive without a writ; he can no longer take any lands or chattels that the fugitive may have acquired since his flight.35 He must have recourse to a writ, and the fugitive will have an opportunity of asserting that by rights he is a freeman, and of asserting this in the king’s court before justices who openly profess a leaning in favour of liberty.36 We need not suppose that this curious extension of the idea of possession is due to this leaning; it is part and parcel of one of the great constructive exploits of medieval law:—relationships which exist de facto are to be protected until it be proved that they do not exist de iure. Still the doctrine, though it had a double edge, told against the lords. Apparently in Bracton’s day a serf who fled had to be captured within four days; otherwise he could not be captured, unless within year and day he returned to “his villein nest”:37 a parallel rule gave the ejected landholder but four days for self-help.38 Of course, however, every absence from the lord’s land was not a flight; the serf might be living elsewhere and making some periodic payment, chevagium, head-money, in recognition of his lord’s rights: if so, he was not in seisin of his liberty. What the Institutes say about domesticated animals can be regarded as to the point.39
Covenant between lord and serf. Yet another qualification of rightlessness is suggested. More than once Bracton comes to the question whether the lord may not be bound by an agreement, or covenant, made with his serf. He is inclined to say Yes. His reasoning is this:—the lord can manumit his serf, make him free for all purposes; but the greater includes the less; therefore the serf may be made a freeman for a single purpose, namely that of exacting some covenanted benefit, and yet for the rest may remain a serf.40 Such reasoning is natural if once we regard serfdom as a mere relationship between two persons. It does not, however, seem to have prevailed for any long time, for our law came to a principle which was both more easily defensible and more hostile to serfdom, namely that if the lord makes a covenant with his serf, this implies a manumission; he becomes free because his lord has treated him as free.41 Bracton’s doctrine very possibly had facts behind it and was no empty speculation, for we do find lords making formal agreements with their serfs;42 but it ran counter to a main current of English land law. The agreements that Bracton had in view were in the main agreements relating to the tenure of land, and as we have already seen,43 our law was strongly disinclined to recognize any contract concerning the occupation of land which was merely a contract and not a bestowal of “real” rights: it urged the dilemma—no right to occupy land or some one of the known forms of legal tenure.
(2)The serf in relation to third persons.The serf’s position in relation to all men other than his lord is simple:—he is to be treated as a freeman.44 When the lord is not concerned, criminal law makes no difference between bond and free, and apparently the freeman may have to do battle with the bond. A blow given to a serf is a wrong to the serf. It may also give his lord a cause of action against the striker; but here also the law makes no difference between bond and free. If my serf is assaulted so that I lose his services or so that I suffer contumely, I have an action for damages; but it would be no otherwise had the assaulted person been my free servant.45 So also in defining the master’s liability for wrongful acts done by his dependants, the same principles as regards authorization and ratification seem to be applied whether the dependants be free servants or serfs.46 It is rather for the acts of members, free or bond, of his household (manupastus, mainpast) that a man can be held liable than for the acts of his serfs.47
The serf’s property.Then in relation to men in general, the serf may have lands and goods, property and possession, and all appropriate remedies. Of course if he is ejected from a villein tenement, he has no action; the action belongs to the lord of whom he holds the tenement, who may or may not be his personal lord; were he a freeman holding in villeinage he would be no better off.48 But the serf can own and possess chattels and hold a tenement against all but his lord. This general proposition may require some qualifications or explanations in particular instances. We read in the Dialogue on the Exchequer that if the lord owes scutage to the crown his serf’s chattels can be seized, but ought not to be seized until his own chattels have been exhausted;49 we read in Bracton that when a lord is to be distrained his villein’s chattels should be the very first object of attack;50 but in these cases we may say that the serf, having no proprietary rights against his lord, is treated as having none against those who by virtue of legal process are enabled to claim what the lord himself could seize:—the general principle is hardly impaired by such qualifications, and it is a most important principle.
Relative serfdom.Still it is not a natural principle. This attempt to treat a man now as a chattel and now as a free and lawful person, or rather to treat him as being both at one and the same moment, must give rise to difficult problems such as no law of true slavery can ever have to meet. Suppose for example that a villein makes an agreement with one who is not his lord; it seems certain that the villein can enforce it; but can the other contractor enforce it? To this question we have a definite answer from Britton:51 —a contract cannot be enforced against a villein; if he is sued and pleads “I was the villein of X when this agreement was made and all that I have belongs to him,” then the plaintiff, unless he will contradict this plea, must fail and his action will be dismissed; nor can he sue X, for (unless there is some agency in the case) the lord is not bound by his serf’s contract. In later times this rule must have been altered; the plea “I am the villein of X and hold this land of him in villeinage” was often urged in actions for land, but we do not find the plea “I am the villein of X ” set up in purely “personal” actions, as assuredly it would have been had it been a good plea.52 But, even if we admit that a villein may be sued upon a contract, the creditor’s remedy is precarious, for the lord can seize all the lands and chattels of his serf, and an action against his serf is just what will arouse his usually dormant right. Thus the law, in trying to work out its curious principle of “relative servitude,” is driven to treat the serf as a privileged person, as one who can sue but cannot be sued upon a contract; and, even when it allows that he can be sued, it can give the creditor but a poor chance of getting paid and will hardly prevent collusion between villeins and friendly lords. Again, we see the ecclesiastical courts condemning the villein to pay money for his sins, fornication and the like, and then we see the villein getting into trouble with his lord for having thus expended money which in some sort was his lord’s.53 The law with its idea of relative servitude seems to be fighting against the very nature of things and the very nature of persons.
(3)The serf in relation to the state.Lastly, we should notice the serf’s position in public law. It is highly probable that a serf could not sit as the judge of a freeman, though it may be much doubted whether this rule was strictly observed in the manorial courts.54 He could not sit as a judge in the communal courts, though he often had to go to them in the humbler capacity of a “presenter.” So too he could not be a juror in civil causes; this he probably regarded as a blessed exemption from a duty which fell heavily on freemen. But in criminal matters and in fiscal matters he had to make presentments. At least in the earlier part of the century, the verdict or testimony which sends freemen to the gallows is commonly that of twelve freemen endorsed by that of the representatives of four townships, and such representatives were very often, perhaps normally, born villeins. Such representatives served on coroners’ inquests, and the king took their testimony when he wished to know the extent of his royal rights.55 In the “halimoots” or manorial courts the serfs are busy as presenters, jurors, affeerers of amercements, if not as judges; they fill the manorial offices; the reeve of the township is commonly a serf. What is more, the state in its exactions pays little heed to the line between free and bond; it expects all men, not merely all freemen, to have arms;56 so soon as it begins to levy taxes on movables, the serfs, if they have chattels enough, must pay for them.57 It is but a small set-off for all this onerous freedom that a serf cannot be produced as champion or as compurgator; and even this rule is made to operate in favour of liberty; if a lord produces a serf as champion or compurgator this is an implied manumission.58 The serfs have to bear many of the burdens of liberty. The state has a direct claim upon their bodies, their goods, their time and their testimony, and if for a moment this seems to make their lot the less tolerable, it prevents our thinking of them as domestic animals, the chattels of their lords.
How men become serfs.Having seen what serfdom means, we may ask how men become serfs. The answer is that almost always the serf is a born serf; nativus and villanus were commonly used as interchangeable terms.59 But as to the course by which serfdom is transmitted from parent to child we find more doubts than we might have expected.Servile birth. If both parents are serfs, of course the child is a serf; but if one parent is free and the other a serf, then difficulties seem to arise. The writer of the Leges Henrici holds that the child follows the father; but he quotes the proverb, “Vitulus matris est cuiuscunque taurus alluserit,” and seems to admit that in practice the child is treated as a serf if either of the parents is unfree.60 Glanvill is clear that the child of an unfree woman is a serf and seems to think that the child of an unfreeman is no better off.61 Thus we should get the rule, which had been approved by the church, namely, that, whenever free and servile blood are mixed, the servile prevails.62 Bracton, however, has a more elaborate scheme. A bastard follows the mother; the child of a bondwoman, if born out of wedlock, is a serf; if born in wedlock and of a free father, then another distinction must be taken; if a freeman takes a bondwoman to wife and they dwell in her villein tenement, then their offspring will be born serfs, but if she follows him to “a free couch” then their children will be born free. So also when a bondman marries a free woman, the character of the tenement in which they dwell determines the character of their offspring.63 The influence thus ascribed to the tenement is very curious; it shows that to keep villein status and villein tenure apart was in practice a difficult matter, even for a lawyer ever ready to insist that in theory they had nothing to do with each other. In later days the courts seem to have adopted the simple rule that the condition of the father is the decisive fact, and to have pressed this rule to the absurd, if humane, conclusion that a bastard is always born free since he has no father.64
Mixed marriages. “Mixed marriages” indeed gave a great deal of trouble throughout the middle ages by raising questions as to the rights and remedies of the husband and wife.65 Ultimately “the better opinion of our books” was that the marriage of a female serf with a freeman, other than her lord, did not absolutely enfranchise her, but merely made her free during the marriage.66 In 1302, however, we find two justices denouncing this doctrine as false, “and worse than false, for it is heresy”; apparently they think that such a marriage has all the effect of a manumission; but their opinion did not go undisputed.67 Such a marriage would not at any rate drag down the freeman into personal servitude, though according to Bracton the issue of it would be serfs if they were born in the villein tenement. In the converse case in which a bondman marries a free woman, he of course is not enfranchised, though Bracton’s doctrine would make their children free if born in her free tenement. On the contrary, it might be thought that, at all events if she went to live along with her villein husband in his villein tenement and to bear him villein children, she herself would be accounted a villein. But this was not the rule. How far during the marriage she could make good any rights against her husband’s lord (and it will be remembered that as against all others her husband was a freeman) was very doubtful; she could not sue without her husband, and if he joined in the action, the lord would say, “You are my villein.”68 But on her husband’s death she would be free once more, or rather her freedom would once more become apparent and operative.69
Influence of place of birth.Faint traces may be found of an opinion that birth in a certain district or a certain tenement will make the child unfree, or as the case may be free, no matter the condition of its parents; but, except in the well-known privilege of Kentish soil, it seems to have found no legal sanction.70
Villeins by confession.A person born free rarely becomes a serf. When Bracton speaks of prisoners of war being held as slaves and of a freedman being reduced to slavery on account of his ingratitude, this is but romanesque learning.71 We do not in this age hear of servitude as a punishment, though the Welsh marchers claim the right of selling criminals as slaves,72 and King John can threaten all men with slavery if they do not take arms to resist an invasion.73 Nor do we any longer hear of freemen selling themselves into slavery. But it is a principle of law that if a person has once confessed himself the serf of another in a court of record, he can never thereafter be heard to contradict this assertion, and so “confession” takes its place beside “birth” as one of the origins of servility. There are abundant cases in our records which suggest that this talk about confession is not idle;74 a defendant sometimes seeks to evade a plaintiff’s demand by confessing that he is the villein of a third person, and thus, even in the later middle ages, men may sometimes have purchased peace and protection at the cost of liberty.75
Serfdom by prescription.Whether prolonged serfdom de facto will generate serfdom de iure was in Edward I.’s day a moot point. Some justices laid down as a maxim that no prescription can ever make servile, blood that once was free. Others flatly denied this rule, and apparently held that if from father to son a succession of freemen went on doing villein services, the time would come when an unfree child would be born to a free father. One opinion would have condemned to servitude the fifth generation in a series of persons performing base services, while a Scottish law-book mentions the fourth generation, and a common form of pleading made a lord assert that he had been seised of the grandfather and great-great-grandfather of the man whose liberty was in dispute. Opinion might fluctuate about this question, because procedural rules prevented it from being often brought to a decision. The general rule as to the means by which free or servile status could be conclusively proved was that it must be proved per parentes. If the burden of proof lay on the person whose status was in question, he had to produce free kinsmen; if it lay on the would-be lord, he had to produce kinsmen of the would-be freeman who would confess themselves serfs. A mere verdict of the country might settle the question provisionally and, as we may say, for possessory purposes, but could not settle it conclusively except as against one who had voluntarily submitted to this test. The burden of the proof is thrown on one side or on the other by seisin; the man who is in de facto enjoyment of liberty continues to be free until his servility is proved; the man who is under the power of a lord must remain so until he has shown his right to liberty. On the whole the procedural rules seem favourable to freedom. In Bracton’s day a four days’ flight76 might throw the burden of proof upon the lord, and he would have to make out his title, not by the testimony of free and lawful neighbours, who would naturally infer serfdom de iure from serfdom de facto, but by the testimony of the fugitive’s own kinsfolk as to the fugitive’s pedigree, and they must confess themselves serfs before their testimony can be of any avail.77 On the other hand, if a man has been doing villein services, he may as a matter of fact easily fall into serfage, unless he is willing to run from hearth and home and risk all upon a successful flight and an action at law. If for generation after generation his stock has held a villein tenement and done villein services he will be reckoned a villein, that is, a serf; even his kinsfolk will not dare to swear that he is free. There is no form of service so distinctively servile that it must needs be ascribed to servile status and not to villein tenure; even the merchet, which is regarded as the best test, may sometimes be paid ratione tenementi and not ratione personae;78 but a prolonged performance of villein services must put a family’s free status in jeopardy. That this is not so as a matter of law seems the opinion of the highest authorities; but the fact that a contrary opinion was current both in England and in Scotland may well make us think that in common life there had been a close connexion between villein tenure and villein status.79
How serfdom ceases.And now as to manumission:—A lord can easily enfranchise his serf. He can do so expressly by a charter of manumission; he does so impliedly by a grant of land to be held freely by the serf and his heirs,Manumission. for a serf can have no heir but his lord;80 he does so impliedly by certain acts which treat the serf as free, by producing him in the king’s court as his champion or his compurgator;81 it is becoming dangerous for a lord to make any written agreement with his serf.82 There has been a difficulty as to a direct purchase of liberty. If the serf paid money to the lord for the grant of freedom, the lord might, it would seem, revoke the grant on the ground that his serf’s money was his own money. This technical difficulty, for perhaps it was no more, was evaded by the intervention of a third person who made the purchase nominally with his own but really with the serf’s money, and the serf having been sold and delivered (the ownership did not pass until delivery) was then set free by his new owner.83
The freedman.In Bracton’s day every act of manumission by the lord seems to have conferred full and perfect freedom; the freedman was in all respects the equal of the free born. This could hardly have been otherwise since, as we have seen, serfdom was regarded for the more part as a mere relation between two persons. Glanvill seems to have held a different opinion. He speaks as though the liberation would make the serf free as regards his former lord but leave him a serf as regards all other men.84 The chief, if not the only, point that Glanvill had before his mind when he wrote this, seems to have been that the freed villein could not be produced as champion or as compurgator. It is possible also that he had in view acts of enfranchisement which were merely private and would not have denied that there were solemner methods by which absolute freedom could be conferred. In the Leges Henrici the man who wishes to free his serf must do so in public, “in a church or a market or a county court or a hundred court, openly and before witnesses”; lance and sword are bestowed on the new freeman and a ceremony is enacted which shows him that all ways lie open to his feet.85 Glanvill may have required some such public act if perfect liberty was to be conferred; but Bracton, who habitually regards serfdom as a mere relationship, sees no difficulty; the lord by destroying the relationship destroys serfdom. Here we seem to see a modern notion of relative serfdom growing at the expense of an older notion of true slavery. To turn a thing into a person is a feat that cannot be performed without the aid of the state but to make free as against yourself one who is already free as against all but you, this you can easily do, for it is hardly a matter of public law.86
Other modes of enfranchisement.A serf will also become free (1) by dwelling for year and day on the king’s demesne or in a privileged town—this is an assertion of a prerogative right which peoples the king’s manors and boroughs;87 (2) by being knighted—knighthood confers but a provisional freedom, for the knighted serf can be degraded when his servility is proved;88 (3) by entering religion or receiving holy orders; it is unlawful to ordain a serf—this is forbidden by canon as well as by temporal law,89 —but, when once ordained, he is free, though his serfdom revives if he resumes a secular life.90 The lord’s right of action for the recovery of a serf was subject to a prescriptive term; in 1236 the year 1210 was chosen as the limit, and this limit was not altered until 1275;91 we have already seen that his right of self-help the lord lost somewhat easily, though less easily as time went on.92
Summary.Such briefly stated is the English law of villeinage or serfage in the thirteenth century. Its central idea, that of the relativity of serfage, is strange. It looks artificial: that is to say, it seems to betray the handiwork of lawyers who have forced ancient facts into a modern theory. Slavery is very intelligible; so is slavery tempered by humane rules which will forbid an owner to maltreat his human chattel; so again is a praedial serfage, and the ancient laws of our race compel us to admit that there may be a half-free class, men who are neither liberi homines nor yet servi;93 but a merely relative serfdom is a juristic curiosity.94 In defining it we have ever to be using the phrases “in relation to,” “as regards,” “as against,” phrases which would not easily occur to the unlettered, and law which allows my serf to sue any freeman but me, even to sue my lord, does not look like a natural expression of any of those deep-seated sentiments which demand that divers classes of men shall be kept asunder. Then this idea of relative servitude has to be further qualified before it will square with facts and customs and current notions of right and wrong. When a lord allows it to be recorded that on the death of his servile tenant he is entitled to the best beast, he goes very far towards admitting that he is not entitled to seize the chattels of his serf without good cause. We hesitate before we describe the serf as rightless even as against his lord, and, if we infer want of right from want of remedy, we feel that we may be doing violence to the thoughts of a generation which saw little difference between law and custom. On the whole looking at the law of Bracton’s day we might guess that here as elsewhere the king’s court has been carrying out a great work of simplification; we might even guess that its “serf-villein,” rightless against his lord, free against all but his lord, is as a matter of history a composite person, a serf and a villein rolled into one.95
Retrospect.That this simplifying process greatly improved the legal position of the serf can hardly be doubted.Fusion of villeins and slaves. We need not indeed suppose that the theow or servus of earlier times had been subjected to a rigorously consistent conception of slavery. Still in the main he had been rightless, a chattel; and we may be sure that his rightlessness had not been the merely relative rightlessness of the “serf-villein” of later days, free against all but his lord. Indeed we may say that in the course of the twelfth century slavery was abolished. That on the other hand the villani suffered in the process is very likely. Certainly they suffered in name. A few of them, notably those on the king’s manors, may have fallen on the right side of the Roman dilemma “aut liberi aut servi,” and as freemen holding by unfree tenure may have become even more distinctively free than they were before; but most of them fell on the wrong side; they got a bad name and were brought within the range of maxims which described the English theow or the Roman slave.
The levelling process.Probably we ought not to impute to the lawyers of this age any conscious desire to raise the serf or to debase the villein. The great motive force which directs their doings in this as in other instances is a desire for the utmost generality and simplicity. They will have as few distinctions as possible. All rights in land can be expressed by the formula of dependent tenure; all conceivable tenures can be brought under some half-dozen heads; so also the lines which have divided men into sorts and conditions may with advantage be obliterated, save one great line. All men are free or serfs; all freemen are equal; all serfs are equal:—no law of ranks can be simpler than that. In this instance they had Roman law to help them; but even that was not simple enough for them; the notion of coloni who are the serfs of a tenement rather than of a person, though it might seem to have so many points of contact with the facts of English villeinage, was rejected in the name of simplicity.96 They will carry through all complexities a maxim of their own:—the serf is his lord’s chattel but is free against all save his lord. They reck little of the interests of any classes, high or low; but the interests of the state, of peace and order and royal justice are ever before them.
The number of the serfs.We have spoken at some length of the “serf-villeins” of the thirteenth century, for they formed a very large class. For several reasons precise calculations are impossible. In the first place, tenure is so much more important than status, at least so much more important as a matter of manorial economy, that the “extents” and surveys are not very careful to separate the personally free from the personally unfree. In the second place, it is highly probable that large numbers of men did not know on which side of the legal gulf they stood; they and their ancestors had been doing services that were accounted villein, paying merchet and so forth; but this was not conclusive, and if they escaped from their lord it might be very difficult for him to prove them his “natives.” On the other hand, while they remained in his power, they could have little hope of proving themselves free, and if they fled they left their all behind them. In the third place, a great part of our information comes from the estates of the wealthiest abbeys, and while admitting to the full that the monks had no wish to ill-treat their peasantry, we cannot but believe that of all lords they were the most active and most farsighted. Lastly, we have as yet in print but little information about certain counties which we have reason to suppose were the least tainted with servitude, about Kent (already in Edward I.’s time it was said that no one could be born a villein in Kent97 ), about Norfolk and Suffolk, about the Northumbrian shires. Still, when all is said, there remain the Hundred Rolls for the counties of Bedford, Buckingham, Cambridge, Huntingdon and Oxford, and no one can read them without coming to the conclusion that the greater half of the rural population is unfree. The jurors of various hundreds may tell us this in different ways; but very commonly by some name such as nativi or servi, by some phrase about “ransom of flesh and blood” or the like, they show their belief that taken in the lump those peasants, who are not freeholders and are not royal sokemen, are not freemen.
Rise of villeins.Occasionally a man who was born a villein might find a grand career open to him. It was said that John’s trusty captain Gerard de Athée, whose name is handed down to infamy by Magna Carta, was of servile birth;98 in 1313 the Bishop of Durham manumitted a scholar of Merton who was already a “master”;99 in 1308 Simon of Paris, mercer and alderman, who had been sheriff of London, was arrested as a fugitive villein, after being required to serve as reeve of his native manor.100
Civil death.Another large part of medieval society is made up of men and women who have “entered religion and become professed,” of monks, nuns, “regular” canons and friars who have taken vows of poverty and obedience and quitted this world. Now a transition from the villein to the monk seems harsh. Bracton however makes it:—the villein being under the power of his lord may, like the monk, be considered as “civilly dead.”101 From the lawyer’s point of view the analogy that is thus suggested will not seem altogether fanciful and profitless. It is not as a specially holy person but as a property-less and a specially obedient person that law knows the monk. He has no will of his own (non habet velle, neque nolle102 ) because he is subject to the will of another, and, though as a matter of religion that will may be thought of as the divine will expressed in the rule of St. Benet or St. Bernard, still within the sphere of temporal law it is represented by the will of the abbot. It could not be suffered that by a mere declaration of his intention to live a holy life untroubled by mundane affairs a man should shuffle off not only the rights but the duties that the law has cast upon him; but a vow of obedience is a different matter; it is not very unlike a submission to slavery.
Growth of the idea of civil death.The fiction of “civil death” seems called in to explain and define rules of law which have been gradually growing up.103 By the dooms of Æthelred and of Cnut the cloister-monk is forbidden to pay or to receive the feud money, that is to say, the money payable by the kindred of a manslayer to the kindred of the slain, “for he leaves behind his kin-law when he submits to rule-law”; he ceases to be a member of a natural family when he puts himself under the monastic rule and enters a spiritual family.104 Already Alfred had decreed that if I entrust goods to “another man’s monk” without the leave of that monk’s “lord” and the goods are lost, I must go without remedy.105 At a later time we find the same principle applied if the monk to whom I have entrusted the goods denies the receipt of them, and the monk is here classed along with the slave, the wife, the infant child. These passages presuppose that we cannot sue the monk without his prelate, his “lord,” and they declare that the monk cannot make his prelate liable for the safety, or the return, or the price of goods, unless he has been expressly authorized to do so.106 But it is very doubtful whether in the days before the Conquest or even for some years afterwards the principle that is hinted at by the term “civil death” was rigorously enforced. The older and laxer forms of monasticism could not be overcome by one blow. In Æthelred’s day the cloisterless monk who recked not of the rule but was trying to make the best of both worlds was well known.107 We find too in Domesday Book that a monk will sometimes hold land of his house, or of his abbot, and the state seems to regard him as being the responsible tenant of that land.108
Meaning of civil death.But stricter notions began to prevail and to find expression in the term “civil death.” In one large department of law the fiction is elegantly maintained. A monk or nun cannot acquire or have any proprietary rights. When a man becomes “professed in religion,” his heir at once inherits from him any land that he has,109 and, if he has made a will, it takes effect at once as though he were naturally dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend to him, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead.110 In the eye of ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights or the separate enjoyment of any wealth, committed about as bad an offence as he could commit.111
Difficulties arising from civil death.A fiction, however, which would regard a living man as dead must find that limits are set to it by this material world. A monk does wrong or suffers wrong; we cannot treat the case as though wrong had been done to a corpse or by a ghost. A monk of Ramsey assaults and beats a monk of Thorney; the law is not content that the injury should go unredressed. As regards those grave crimes which are known as felonies, the monk is dealt with as though he were an ordained clerk; he enjoys that “benefit of clergy” of which we must speak hereafter. For smaller offences, the “misdemeanours” of later law, monks, like secular clerks, could be tried by the temporal courts and imprisoned.112 As to torts or civil wrongs, the rule was that the monk could neither sue nor be sued without his “sovereign.” The man assaulted by a monk would bring his action against that monk and that monk’s abbot, while, if a monk were assaulted, his abbot and he could bring the action.113 The abbot seems to have been entitled to receive any compensation that became due for damage done to the monk, and to have been compelled to make amends for damage that the monk did. Our law did not say that a monk could not sue or be sued, it said that he could not sue or be sued without his sovereign. Nor did it say that a wrong done to a monk was the same as a wrong done to his abbot, or that a wrong done by a monk was the same as a wrong done by his abbot. It is not all one whether a monk of Ramsey has beaten a monk of Thorney, or the abbot of Ramsey has beaten the abbot of Thorney. The maxim Actio personalis moritur cum persona seems to have been applied as though the two monks were truly personae. The action died with the offending monk and with the offended. Often enough the analogy afforded by the law of husband and wife is brought into the debate. A blow given by John’s wife to Peter’s wife is not the same as a blow given by John to Peter; yet John may have to pay money because his wife is a striker and Peter may receive money because his wife has been stricken. If we may judge from the Year Books, a long time elapsed before accurate rules about this matter were evolved, and perhaps some questions were still open when the day came for the suppression of the monasteries. But the main principle that guides our lawyers in this region is, not that the monk is dead, but that, though he can do wrong and suffer wrong, he has not and cannot have any property. Problems which in themselves were difficult were made yet more difficult by the slow growth of the idea that the head of the monastery, though he is a natural person, is also in a certain sense an immortal, non-natural person, or “corporation sole,” and is likewise the head of a “corporation aggregate.”114
The monk as agent.A monk could make no contract; but he was fully capable of acting as the agent of his sovereign, and even in litigation he would often appear as the abbot’s attorney. A monk might be another man’s executor, for the execution of testaments is a spiritual matter.115 It would be a mistake to suppose that monks never took part in worldly affairs. The obedientiaries of a great abbey must often have been keen men of business, largely engaged in buying and selling, and the manorial courts of the abbey were frequently held by the cellarer or some other person who was civilly dead. Whatever the ecclesiastical law may do, the temporal law does not attempt to keep the monks out of courts and fairs and markets; it merely says that a monk has not and cannot have any property of his own.
Abbatial monarchy.The manner in which the monks were treated by the ecclesiastical law we shall not discuss; but the temporal law seems to have assumed that every monk was the absolute subject of some “sovereign”—normally an abbot, but in some cases a prior or a bishop.116 Whatever degree of “constitutional government,” of government in accordance with “the rule” or the statutes of the order, of government by an assembly, by a chapter, might prevail within the house, was no affair of the secular power. It treated the sovereign as an absolute monarch and would hardly be persuaded to step between him and his subjects. Against him they could urge no complaint. We may indeed suppose that he might have been indicted for slaying or maiming them; but even in this case he would have enjoyed the benefit of clergy and been sent for trial to an ecclesiastical court. So long as he did not deprive them of life or limb he committed no crime of which the lay tribunals would take any account, and undoubtedly the penances that were inflicted were sometimes extremely rigorous.117 According to the common law of the church the monks might appeal from their abbot to the bishop of the diocese, but some of the great houses were exempt from the bishop’s control and then there was no help to be had save from Rome. Occasionally the monks would unite to resist their abbot, and fierce and protracted litigation before the Roman curia would be the result.118 But the individual monk was helpless; if he escaped from his cloister, the temporal power would come to the aid of the church and deliver up this “apostate” to his ecclesiastical superiors.119
Return to civil life.Late in the day we hear discussions as to the possibility of the dead coming to life. In the fifteenth century lawyers said that, though the “sovereign” might release the monk from his obedience, none but the pope could restore him to the world of civil rights.120 Rules about such a point had not been very necessary, for dispensations from monastic vows had been uncommon. Of course in a manner the monk came back to legal life if he became the sovereign of a religious house, still more if, as well he might, he became a bishop; but it may be much doubted whether the lawyers of the thirteenth century would have seen in this the new birth of a natural person. They had not drawn any clear line between “natural” and “juristic” persons, and the monk who was elected to an abbacy became thereby persona ecclesiae, the human representative of a personified institution. Only by virtue of papal bull and royal charter could an abbot make a valid will, for “by the common law an abbot cannot have property or executors.”121 We are not sure that an abbot could have inherited from a kinsman. The dual personality of a bishop seems to have been more readily admitted, still, as we shall remark below, there had been much controversy as to whether a bishop had anything to leave by his will. It is not easily that lawyers come to think of one man as two persons, or to talk of “official capacities” and “corporations sole.”
Civil death as a development of the abbot’s mund.We cannot take leave of the monks without noticing that in medieval law monasticism is no such isolated phenomenon as it would be in modern law. Of course the relationship that exists between abbot and monk is not just that which exists between lord and villein, still less is it that which we see between husband and wife. But to compare these three relationships together is not the mere fetch of an advocate at a loss for arguments nor the fancy of a too subtle jurist. As a matter of history they well may have a common element. They all may be off-shoots of one radical idea, that of the Germanic mund, a word which we feebly render by guardianship or protection. Certain it is that our common law of husband and wife curiously reproduces some features of the law of abbot and monk, and we might understand the legal history of villeinage and the legal history of monasticism the better if we brought them into connexion with each other.
Legal position of the ordained clerk.Collectively the clergy are an estate of the realm. With this constitutional doctrine we are not here concerned, nor are we called upon to describe the organization of the clerical body; but, taken individually, every ordained clerk has a peculiar legal status; he is subject to special rules of ecclesiastical law and to special rules of temporal law. We cannot say that the clerk is subject only to ecclesiastical, while the layman is subject only to temporal law. Neither half of such a dogma would have been accepted by state or church. Every layman, unless he were a Jew, was subject to ecclesiastical law. It regulated many affairs of his life, marriages, divorces, testaments, intestate succession; it would try him and punish him for various offences, for adultery, fornication, defamation; it would constrain him to pay tithes and other similar dues; in the last resort it could excommunicate him and then the state would come to its aid. Even the Jews, though of course they were not members of the church, were (at least so the clergy contended) within the sphere of ecclesiastical legislation and subject to some of the processes of the spiritual courts.122 In general terms we can say no more than that the ordained clerk was within many rules of ecclesiastical law which did not affect the layman, and that it had a tighter hold over him, since it could suspend him from office, deprive him of benefice and degrade him from his orders. So, on the other hand, the clerk was subject to temporal law. It had some special rules for him, but they were not many.
The clerk under temporal law.At the end of Henry III.’s reign, with one great and a few petty exceptions, the clerk was protected by and subject to the same rules of temporal law which guarded and governed the layman. If a clerk was slain, wounded, robbed or assaulted, the wrong-doer would be punished by the temporal law just as though the injured person had been of the laity. The clerk could own chattels, he could hold land by any tenure, he could make contracts; the temporal law protected his possession and his proprietary rights, it enforced his contracts, without taking any note of his peculiar status. Even when he had to assert possessory or proprietary rights which belonged to him as the rector or persona of a church, he had to do this in the lay courts, usually by the very same actions that were competent to laymen, but sometimes by an action specially adapted to the needs of parsons.123 We count it no real exception that a clerk who had attained to the subdiaconate could not marry, for the validity of any marriage was a matter for ecclesiastical law; and on the other hand, though the canons forbad the clergy to engage in trade, we are not aware that the lay courts attempted to enforce this rule by holding that their trading contracts were void. Then the clerk was subject to the temporal law. All the ordinary civil actions could be brought against him; he could be sued on a contract, he could be sued for a tort, he could be sued as a disseisor, he could be sued as one who held what did not belong to him, and this although he was holding it in the name of his church. Moreover, for any crime that fell short of felony he could be tried and punished in the common way.
Exceptional rules applied to the clerk.There are a few small exceptions. As a general rule the ecclesiastical courts may not take cognizance of an act of violence. If a layman is assaulted, they will be prohibited from inflicting punishment or penance upon the offender. But violence done to the person of a clerk is within their competence. As already said it is also within the competence of the temporal tribunals. He who has assaulted a clerk may be fined or imprisoned for his breach of the king’s peace; he may be compelled to pay damages for the wrong that he has done; he may be put to penance for his sin;124 indeed he is already excommunicate lata sententia, and, except at the hour of death, can only be absolved by the pope or one who wields papal authority.125 In such a case the clergy do not care to urge their favourite maxim that no one is to be punished twice for the same offence. But this is a small matter. In civil causes a clerk enjoys a certain freedom from arrest,126 but this as yet is of no great importance. On the other hand, the lay courts have invented a special machinery for compelling the appearance of clerks who are sued in personal actions. They direct the bishop of the diocese to produce such clerks, and will proceed against his barony if he is negligent in this matter. For this purpose the clergy are treated as forming part of his familia —as being within his mund, we might say,—and the episcopal barony is a material pledge for their appearance.127 But this again is a small matter, and is far from being a privilege of the clergy; indeed they vigorously, but vainly, protest against this treatment.128
Benefit of clergy.It remains for us to speak of the one great exception, namely, that which is to be known for centuries as the “benefit of clergy.”129 It comes to this, that an ordained clerk, who commits any of those grave crimes that are known as felonies, can be tried only in an ecclesiastical court, and can be punished only by such punishment as that court can inflict. But we must descend to particulars, for generalities may be misleading. A clerk is charged with a murder; it is the sheriff’s duty to arrest him. Probably his bishop will demand him. If so, he will be delivered up; but the bishop will become bound in a heavy sum, a hundred pounds, to produce him before the justices in eyre. The bishop can keep him in prison and very possibly will do so, for, should he escape, the hundred pounds will be forfeited. In the middle of the thirteenth century it is matter of complaint among the clergy that owing to this procedure clerks may languish for five or six years in the episcopal gaol without being brought to trial.130 At last the justices come, and this clerk is brought before them, or some other clerk, who has not yet been arrested, is indicted or appealed before them. In the end it comes about by one means or another that they have before them a clerk indicted or appealed of felony. And now we may follow the words of the enrolment that will be made:—“And the said A. B. comes and says that he is a clerk and that he cannot— or, that he will not—answer here. And the official of the bishop of X comes and demands him as a clerk— or, comes and craves the bishop’s court.” In Bracton’s day the clerk will thereupon be delivered to the bishop or his officer and no inquest will be made by the justices touching guilt or innocence.131 But before the end of Henry III.’s reign the procedure will not be so simple.132 The roll of the court will go on to say—“Therefore let him be delivered; but in order that it may be known in what character (qualis) he is to be delivered [or, in order that the king’s peace may be preserved,] let the truth of the matter be inquired of the country. And the twelve jurors and the four neighbouring townships say upon their oath, that he is guilty, [or, not guilty] and therefore as such let him be delivered.” In other words the justices proceed to take “an inquest ex officio. ” This is not a trial; the clerk has not submitted to it; he has not pleaded; but a verdict is taken. If this is favourable to the accused, he is acquitted, at least in so far as a secular court can acquit him; but if the jurors are against him, then he is delivered to the bishop.133 In the one case his lands and goods, if they have been seized by the royal officers, are at once restored to him, unless he has been guilty of flight and has thus forfeited his chattels;134 in the other case they will be retained until he has been tried, and their fate will depend on the result of his trial.135 For tried he has not yet been. He will be tried in the bishop’s court.
Trial in the courts of the church.Of what went on in the bishop’s court we unfortunately know very little; but we have reason to believe that before the end of the century its procedure in these cases was already becoming little better than a farce. In criminal cases the canon law had adopted the world-old process of compurgation, and here in England the ecclesiastical courts had never reformed away this ancient mode of proof. The blame for this should not fall wholly upon the prelates. Very possibly the lay courts would have prevented them from introducing in criminal cases any newer or more rational form of trial. Had any newer form been introduced, it would have been that “inquisitorial” procedure which historians trace to the decretals of Innocent III.136 In the twelfth century we find an archdeacon who is accused of poisoning his archbishop directed to purge himself with three archdeacons and four deacons.137 Lucius III. told the Bishop of Winchester that he was too severe in investigating the character of compurgators.138 Bishop Jocelin of Salisbury cleared himself of complicity in the murder of Becket with four or five oath-helpers.139 Hubert Walter, sitting as archbishop, forbad that more compurgators than the canonical twelve should be demanded.140 Shortly before this we find the Bishop of Ely offering to prove with a hundred swearers that he took no part in the arrest of the Archbishop of York.141 No doubt in theory the ecclesiastical judge was not in all cases strictly bound to send the clerk to “his purgation.” If there was what was technically known as an accusatio, a definite written charge preferred by the person who was injured, the judge might hold that the accusation was fully proved by the accuser’s witnesses and might convict the accused.142 But the proof required of an accuser by the canon law was rigorous,143 and, from all we can hear, the common practice in England seems to have been to allow the clerk to purge himself. Archbishop Peckham at the instance of Edward I. vaguely ordered that this should not be done too readily;144 in the middle of the fourteenth century Archbishop Islip made a not very earnest effort for the same end;145 but the whole procedure was falling into contempt. Already in certain bad cases the lay courts were forbidding the bishops to admit the accused clerks to their purgation,146 that is, according to the old theory, were forbidding that these accused clerks should be tried at all. So early as 1238 we find the Bishop of Exeter in trouble for having sent to purgation a subdeacon who had been outlawed on a charge of murder, and, though the clerk has purged himself, he is compelled to abjure the realm.147 In Edward I.’s day the king’s justices could treat a canonical purgation with the scorn that it deserved.148
Punishment for felonious clerks.If he failed in his purgation the clerk was convicted and punished. At least in theory there were many punishments at the bishop’s disposal. The chief limit to his power was set by the elementary rule that the church would never pronounce a judgment of blood. He could degrade the clerk from his orders, and, as an additional punishment, relegate him to a monastery or keep him in prison for life. A whipping might be inflicted,149 and Becket, it seems, had recourse even to the branding iron.150 One of the minor questions in the quarrel between Thomas and Henry was whether an ecclesiastical court could exile a convicted clerk or compel him to abjure the realm.151 Innocent III. told the Bishop of London that clerks convicted of larceny or other great crimes were to be first degraded and then closely imprisoned in monasteries.152 In 1222 a church council under Stephen Langton seems to have condemned two of the laity to that close imprisonment which was known as immuration; the culprits had been guilty of fanatical blasphemy.153 In 1261 the constitutions of Archbishop Boniface required that every bishop should keep a proper prison, and declared that every clerk convicted of a capital crime should be kept in gaol for the rest of his life.154 This then was the punishment due to felonious clerks; we fear that but few of them suffered it.
What persons were entitled to the privilege.The privilege was not confined to clerks in orders, for it was shared with them by the monks, and there seems no reason for doubting that nuns were entitled to the same privilege, though, to their credit be it said, we have in our period found no cases which prove this.155 On the other hand, it had not as yet become the privilege of every one who could read or pretend to read a verse in the bible. The justices insist that ordination must be proved by the bishop’s letters. It is still regarded rather as the privilege of the church than of the accused clerk; if his bishop does not claim him he will be kept in prison, perhaps he will be compelled, as a layman would be compelled, to stand his trial.156 We are not able, however, to indulge the hope that the bishop allowed the criminal law to take its course unless he had some reason for believing that the clerk was innocent.157 The plea rolls seem to prove that his official sits day after day in the court of the justices in eyre and as mere matter of course “demands” every clerk who is accused; and in every eyre many clerks will be accused of the worst crimes and their neighbours will swear that they are guilty. By marrying a second time, or by marrying a widow, the clerk, who thus became bigamus, forfeited his immunities:—this rule, promulgated by the council of Lyons under Gregory X., was at once received in England and a retrospective force was attributed to it by a statute of Edward I.158
What offences were within the privilege. It is probable that already in the thirteenth century a clerk charged with high treason, at all events with one of the worst forms of high treason, such as imagining the king’s death or levying war against him, would in vain have relied on the liberties of the church.159 There seems even to have been some doubt as to whether counterfeiting the king’s seal was not a crime so high as to exceed the limits of the clerical immunity.160 At the other end of the scale the clerk charged with a mere transgressio, a misdemeanour we may say, enjoyed no exceptional privilege but could be fined or imprisoned like another man. Henry II. within a very few years after Becket’s death and while the whole of Christendom was ringing with the fame of the new martyr, was able to insist with the assent of a papal legate that forest offences were not within the benefit of clergy,161 and before the end of the next century the lay courts were habitually punishing the clergy for their transgressiones. However, it should be understood that the full extent of the clerical claim had been and was that, not merely every criminal charge, but every personal action, against a clerk was a matter which lay outside the competence of the temporal tribunal. This claim died hard; it was asserted near the end of Henry III.’s reign by a constitution of Archbishop Boniface; Bracton had to treat it with respect, though he rejected it. His doctrine even as to the felonies of clerks is a curious and we may say a very unclerical one. The king’s court does not try the accused clerk; but there is no sound principle which prevents its doing so. Still the appropriate punishment for the felonious clerk is degradation, and this the lay tribunal cannot inflict. The logical result of this would be that the king’s court should try the clerk and, should he be convicted, hand him over to the ordinary, not for trial, but for punishment. However at present this is not the practice.162 Probably it is in consequence of such reasoning as this that a few years later the king’s justices will not deliver up a clerk until they have first taken an “inquest of office” as to his guilt. Thereby they do their best to lessen the harm that is done by an invidious and mischievous immunity. The criminal will purge himself in the court Christian, but a jury of his neighbours will have sworn that he is guilty. Further we must remember that all along the justices insist that, though the clerk is not tried by a secular tribunal, none the less he can be and ought to be accused before it, and that he can be outlawed if he does not appear when he has been accused. In this way the criminal law has some hold over the clerk, though for centuries yet to come the benefit of clergy will breed crime and impede the course of reasonable and impartial justice.163
The Constitutions of Clarendon.Here we might prudently leave “the benefit of clergy,” for to speak of its earlier history is to meddle with the quarrel between Henry II. and Becket. Protesting however that it is not our part to criticize men or motives or policies, we are none the less bound to state, and if possible to answer, certain purely legal questions. These are in the main three:—(1) What was the scheme for the treatment of criminous clerks that Henry proposed in the most famous of the Constitutions of Clarendon? (2) What was the relation of that scheme to the practice of his ancestors? (3) What was its relation to the law of the catholic church as understood in the year 1164?
Henry II.’s scheme.(1) To the first question our answer will be brief.164 We must admit that historians have read the celebrated clause165 in various ways; but for our own part we cannot doubt that it means this:—A clerk who is suspected of a crime is to be brought before the temporal court and accused there; unless he will admit the truth of the charge, he must in formal terms plead his innocence; this done, he will be sent to the ecclesiastical court for trial; if found guilty he is to be deposed from his orders and brought back to the temporal court; royal officers will have been present at his trial and will see that he does not make his escape; when they have brought him back to the temporal court, he will then—perhaps without any further trial, but this is not clear—be sentenced to the layman’s punishment, to death or mutilation. Henry does not claim a right to try or to pronounce judgment upon the criminous clerk; on the contrary, he admits that the trial must take place in the ecclesiastical court; but he does insist upon three principles: (i) that the accusation must be made in the lay court, which will thus obtain seisin of the cause and be enabled to watch its further progress; (ii) that royal officers are to be present at the trial; (iii) that the clerk—or rather the layman, for such he will really be—who has been deposed from his orders for a crime, can be punished for that crime by the temporal power.166
To this scheme Becket objected in the name of the church’s law, and it is certain that he objected, not merely to the first two of these three rules, but also to the third, and this on the ground that it would punish a man twice over for one offence and thus infringe the maxim, Nec enim Deus iudicat bis in idipsum.167
(2) We turn to our second question. Did this scheme fairly represent the practice of Henry I.’s day?Henry’s scheme and past history. We note that it does not profess to represent the practice of Stephen’s day. For legal purposes Stephen’s reign is to be ignored, not because he was an usurper, but because it was a time of war and of “unlaw.” Sixty years later this doctrine still prevails; a litigant cannot rely on what happened in Stephen’s reign, for it was not a time of peace.168 Still, though the son of the Empress is but applying a general doctrine to a particular case, his pregnant assertion that the constitutions express his grandfather’s customs seems an admission that those customs had in some particulars gone out of use under his immediate predecessor.
Henry’s allegations not contested.So sparse is the evidence directly bearing on this question that we gladly catch at any admission made by either of the parties to the quarrel, and we may not unfairly urge that in this case judgment should go by default. Henry did assert repeatedly and emphatically with the concurrence of his barons and with the approval of many bishops that he was but restoring the old customs. Becket and his friends, so far as we can see, would not meet this allegation.169 When one of the martyr’s biographers reminds us that Christ said, not “I am the custom,” but “I am the truth,” we cannot but infer that on the question of fact Henry was substantially in the right. The archbishop and his partizans are fond of speaking of “the so-called customs,” as “pravities” and “abuses”; but they will not meet the king on his own ground.170
Earlier law. The Conqueror’s ordinance.This premised, we look for direct evidence to the reigns of the Norman kings. First we read how the Conqueror ordained that no bishop or archdeacon should administer the episcopal laws in the hundred court, nor bring to the judgment of secular men any cause relating to the rule of souls. Such causes the bishops are to decide, not according to hundred law, but according to the canons and the episcopal laws. The secular power is to aid the church against those whom she has excommunicated. The conduct of the ordeal as a specially ecclesiastical process is declared to be the bishop’s business.171 This tells us little that is to our point. William assumes that all men know what causes are spiritual, what secular. The only matter on which he speaks definitely is the ordeal, and here the two powers will cooperate harmoniously; the bishop will preside at the ceremony, but doubtless the order that sends a man to the fire or to the water will, at least in very many cases, be the order of the hundred court. Of any immunity of clerks from secular jurisdiction or temporal punishment there is no word.
The Leges Henrici.The author of the Leges Henrici is already borrowing from foreign canonists and we cannot tell how far he is stating customs that actually prevail in England. He says plainly enough that no accusation, be it for grave crime, be it for light offence, is to be brought against any ordained clerk save before his bishop.172 This certainly is at variance with one part of Henry II.’s claim, for Henry insisted that the first step in a criminal cause should be taken in the king’s court; but it does not touch the greater question of double punishment.
Precedents for the trial of clerks.We turn from general statements to recorded cases. We can find very few. Most of them may be called “state trials,” and it is not to state trials that we can trust for impartial applications of medieval law; but Domesday Book seems to tell of a clerk who was in peril of death or mutilation, for his body was in the king’s mercy.173 Lanfranc had no difficulty in advising the Conqueror that he might condemn his half-brother Odo to imprisonment and disherison on a charge of rebellion and treason, though Odo pleaded an immunity from secular justice.174 The king, so the great lawyer thought, might distinguish between the Earl of Kent and the Bishop of Bayeux though these two persons happened to be one man. But the case is not decisive, for the punishment did not touch life or member, and very probably Lanfranc could have shown to the satisfaction of all canonists that the warlike Odo had forfeited every clerical privilege by his scandalously military life.175 Of the trial of Bishop William of Durham for a treacherous rebellion against Rufus a long and lively report has come down to us.176 The bishop repeatedly and in strong, clear terms asserted his exemption from temporal justice:—he should be tried according to the sacred canons in a canonically constituted court. It will not satisfy him that among his judges there are his own metropolitan and the Archbishop of Canterbury and many bishops, for they are not clad in their episcopal vestments, they are mixed up with the lay nobles and are sitting under the king’s presidency. Lanfranc baffles and defeats him; judgment is pronounced upon him and pronounced by a layman, Hugh of Beaumont. The bishop appealed to Rome, but never prosecuted his appeal. Here the sentence merely was that the bishop’s fief was forfeited, and the severest canonist could not deny that a purely feudal cause was within the competence of the king’s court, nor perhaps could he have refuted Lanfranc’s opinion that if, after the judgment of forfeiture, the bishop would not surrender his fief, he might lawfully be arrested.177 Still less can be made of King Stephen’s proceedings against Bishop Roger of Salisbury, his nephews and his son. The king took advantage of an affray between the men of the bishops and the men of Earl Alan; he impleaded the bishops because their men had broken his peace, and by way of satisfaction demanded a surrender of their castles. This they refused. He then imprisoned them, maltreated them in gaol and went so far as to put a rope round the chancellor’s neck; he thus obtained the desired fortresses. An ecclesiastical council held by his brother, the legate, cited him; the immunity of clerks was strongly asserted; the king’s proceedings were condemned, and it is even said that he did penance for them; also at one time or another he appealed to Rome; but he kept the castles.178 However, before this Stephen had made a momentous concession: he had sworn that justice and power over ecclesiastical persons and over all clerks and their possessions should belong to the bishops; and by this oath he must, so we think, be taken to have admitted whatever claims of immunity could be fairly made in the name of canon law.179 Then concerning the treatment of criminous clerks in his reign we have a valuable story, which John of Salisbury, writing in the name of Archbishop Theobald, reported to the pope. Osbert, an archdeacon, was accused of having poisoned Archbishop William of York. The charge was preferred by a clerk who had been in the service of the dead prelate. It was made in the presence of King Stephen and the bishops and barons of England. The accuser was ready to prove his case by the hot iron or the boiling water, by battle, or by any other proof. Osbert relied on his clerical privilege and refused to be judged by laymen. Pledges were given on both sides for the further prosecution of the suit; they were given to the king, for the king insisted that, because of the atrocity of the crime and because it was in his presence that the accusation had been made, the case was within his jurisdiction. We and our brethren, says Theobald, protested. Now Stephen is dead and we have had the utmost difficulty in getting Osbert out of King Henry’s hands. We ordered him to purge himself; but he has appealed to you.180
Summary.From such isolated instances as these it would be impossible to extract any definite results for the history of law; but, while they are not inconsistent with Henry’s allegation about the customs of his grandfather, they seem to show that the canonical trial, which Henry was willing to grant, had not always been granted, even by Stephen.181 As to the law that prevailed in England before the Conquest little is known and little could be profitably said in this context, for the Conqueror’s ordinance must be treated as the beginning of a new era.182 However, when King Alfred ordains that the man-slaying priest is to be unhallowed by his bishop and then delivered up from the church, unless his lord will compound for the wergild, he is laying down one of the main principles for which Henry contended.183 If we would pursue the question behind the Norman Conquest, it is much rather the law of France than the law of England that should be studied. At least in this matter the Conqueror was an innovator, and the terms which he made with those who were to be the rulers of the English church were terms made by one who was not an Englishman with those who were not Englishmen. The early history of clerical privileges on the continent of Europe is a long and a dark tale and one that we cannot pretend to tell. Henry II.’s scheme was not unlike that which Justinian had sanctioned.184 In Henry’s day this resemblance was perceived by the learned and was much in his favour:—he was offering the clergy what the leges, the almost sacred leges, gave them.185 But the practice which had prevailed in Gaul was connected rather with the Theodosian Code than with Justinian’s legislation, and under the Merovingian and Karlovingian kings the Frankish clergy had not been able to obtain such liberal terms as Henry was willing to concede at Clarendon.186 During the age which saw the Pseudo-Isidore and his fellows at their work, the age which leads up to the pontificate of Gregory VII., the clerical claims were advancing. We think it very possible that Lanfranc would have demanded and the Conqueror conceded the general principle that the trial of the accused clerk must take place before the spiritual forum; but we may well doubt whether more than this would have been conceded or even demanded, whether as much as this could always be obtained. Of what happened during Stephen’s troubled reign we know too little, but the clerical claims were still advancing, were taking an accurate shape in the Decretum Gratiani, and it is not unlikely that Stephen was forced to allow that only before a spiritual court can a clerk be accused, though from this rule he might hope to maintain some exceptions.187
Henry’s scheme and canon law.(3) This leads us to our third question: Was Becket compelled by the law of the church, as it was understood in the year 1164, to reject Henry’s constitution? We must distinguish. There were two particulars in the plan, to which a canonist bred in the school of Gratian was entitled and bound to refuse his assent.188 A clerk in orders ought not to be accused of crime before the temporal judge, and the mission of royal officers to the church’s court can be regarded as an insult to the church’s justice. We cannot say that these matters were matters of detail; Henry thought them of grave importance; but they become insignificant when set beside the question of double punishment. Now as regards this vital point, Becket propounded a doctrine which, so far as we are aware, had neither been tolerated by the state nor consecrated by the church. He asserted that the state must not punish the criminous clerk for that crime for which he has already suffered degradation. In 1164 a good deal had lately been written about this matter by the most renowned canonists of the age. We do not say that there was no room for doubt; there were obscure passages in the Decretum which needed comment; but we can say that two of the most famous masters of the canon law had considered and overruled the opinion of St. Thomas, while we can name no writer who had maintained it. What is more, that opinion, though owing to his martyrdom it was suffered to do immeasurable mischief in England by fostering crime and crippling justice, was never consistently maintained by the canonists; had it been maintained, no deposed or degraded clerk would ever have been handed over to the lay power as a heretic or a forger of papal bulls. As a general principle of law, Becket’s theory about double punishment was condemned by Innocent III.; the decree which condemns it is to this day part of the statute law of the catholic church.189
Curiously enough that point in Henry’s scheme which in the eyes of the canonist must have seemed the least defensible, was successfully defended. As we have seen, his successors maintained the rule that clerks can be haled before the king’s justices and accused of capital crimes. On the other hand, the not uncanonical principle which would have brought back the degraded clerk to hear a sentence in the royal court was abandoned. The result was lamentable.
The murderers of clerks.One small matter remains to be noticed. It has sometimes been assumed by English writers that the clergy were willing to admit a certain measure of reciprocity, that they were willing that their own lives should be protected only by ecclesiastical law and ecclesiastical tribunals and that this is proved by the fate of the archbishop’s murderers. Now it is true that a clerk was forbidden by the law of the church to go before a lay court and seek a judgment of blood; but to say this is one thing, to say that the lay murderer of a clerk is not to be punished by the lay prince is quite another thing, and we are not persuaded that any one ever said it except when he was in a logical strait. As we read the chronicles, Henry was blamed by his contemporaries for not having brought the murderers to justice and put them to death, though it was admitted by some that he was in a very awkward position:—he would be blamed if he let them escape, he would be blamed if he punished them, for this would be casting upon them the burden of a crime of which in common opinion he himself was not guiltless. He thought it best that they should go to the pope.190 Afterwards he declared that he had been unable to arrest them.191 It would seem indeed that for a very few years some English ecclesiastics were driven by the stress of Becket’s logic to say that they would be content if the murderers of clerks were handed over to the mild judgments of the church; or perhaps the true story is that this assertion was put into their mouths as a reductio ad absurdum of their demands by those who, though clerks and bishops, were the king’s clerks. At any rate very soon after the martyrdom Archbishop Richard, the martyr’s successor, wrote to three of the martyr’s most deadly foes, who were by this time three prelates of the English church and the three principal justices of King Henry’s court, he wrote to Richard of Ilchester, John of Oxford and Geoffrey Ridel, and told them that the doctrine which would deal thus tenderly with lay offenders was a damnable opinion and utterly at variance with canon law.192 Repudiating the line of argument favoured by his sainted predecessor, he assured his three suffragans that a layman might be first excommunicated by the church and then hanged by the state without being punished twice for one offence.193 Henry could now make terms; he had something to sell. In 1176 a papal legate conceded that he might punish clerks for breaches of the forest law, and in return the king granted that the lives of clerks should be protected as well as, or even better than, the lives of laymen.194
The classical common law.When our common law issues from the middle ages both its tests of nationality and its treatment of aliens are hardly such as we might have expected them to be.
Who are aliens?1. As regards the definition of the two great classes of men which have to be distinguished from each other, the main rule is very simple. The place of birth is all-important. A child born within any territory that is subject to the king of England is a natural-born subject of the king of England, and is no alien in England. On the other hand, with some exceptions, every child born elsewhere is an alien, no matter the nationality of its parents.
The full extent of the first half of this rule was settled in 1608 by the famous decision in Calvin’s case:—a child born in Scotland after the moment when King James the Sixth became King James the First is no alien in England.195 The decision was one which pleased the king and displeased many of his subjects; but no other judgment could have been given, unless many precedents derived from times when our kings had large territories on the continent of Europe had been disregarded.
The other half of the rule takes us back to the middle of the fourteenth century. In 1343 a great debate has sprung up among men of the law and others as to the national character of the children born to English parents in foreign parts. The king seems to fear that this may touch even the succession to the throne; the prelates and barons reassure him; there never has been any doubt that the king’s children wherever born are capable of inheriting from their ancestors. But as regards other children they hesitate. It is agreed in parliament that children “born in the king’s service,” no matter the place of their birth, can inherit; but time is short, this difficult matter requires further discussion, and so it is also agreed that no statute shall be made upon the present occasion.196 Then in 1350 the debate is resumed. Once more there is a solemn protest that as to the king’s children there is not and has never been any doubt at all. For the rest, it is ordained by statute that “children born without the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the king of England, shall have and enjoy the same benefits and advantages to have and bear inheritance within the same ligeance as [certain children in whose favour this rule was being retrospectively applied], so always that the mothers of such children do pass the sea by the licence and wills of their husbands.”197 Certain children already born, were then declared capable of inheriting. The inference which we should draw from the proceedings of 1343 and 1350 is that the parliament thought that it was defining a somewhat debatable point in the common law, not that it was introducing a new rule. There is very little in the earlier Year Books that bears on this point: just enough, it may be, to suggest that the usual forms of pleading threw difficulties in the way of any one born “out of the king’s ligeance,” and that “the king’s ligeance” was regarded as a geographical tract.198
Disabilities of the alien.2. An alien cannot hold land in England. If the person to whom land would descend according to the common rules of inheritance is an alien, it misses him and passes to some remoter kinsman of the dead man. If, on the other hand, an alien obtains land by gift, sale, lease or the like, the transaction is not a nullity, but the king can seize the land and keep it for himself. Late in the middle ages we hear of a narrow exception:—an alien merchant may hire a house for the purposes of his trade.199 Also it is said that an alien may have goods and chattels; he may make a will of them, and, should he die intestate, they will be administered for the benefit of his kinsfolk. But it is very noticeable that according to Littleton an alien can bring no action whether real or personal, and when his great commentator explains this to mean that no alien can bring a real action, that no alien enemy can bring a personal action, but that an alien whose sovereign is in league with our own may bring personal actions, we cannot but feel that this is a bold treatment of a carefully worded text.200
Naturalization.3. Nothing short of a statute can give to an alien all the rights of a natural born subject; but some of these can be conferred by the king’s letters patent making the alien a “denizen.” A denizen thus made can hold land, and he can acquire land by gift, sale or the like, but he cannot inherit, and a child of his born before the act of denization cannot inherit from him.201
Law of earlier times.Now there is room for serious doubt whether these rules can be traced far beyond the end of the thirteenth century. Very ancient law may regard every stranger as an enemy; but it will lay far more stress upon purity of blood than on place of birth; it will be tribal rather than territorial law. At a later time the friendly stranger will have no strict legal rights, no rights given him by the folk-law, but will live under the protection, the mund, of the ruler or some other great man. There is much in the treatment received by Jews and foreign merchants in the thirteenth century which suggests this doctrine. But feudalism is opposed to tribalism and even to nationalism: we become a lord’s subjects by doing homage to him, and this done, the nationality of our ancestors and the place of our birth are insignificant. The law of feudal contract attempts for a while to swallow up all other law. In England, however, a yet mightier force than feudalism came into play. A foreigner at the head of an army recruited from many lands conquered England, became king of the English, endowed his followers with English lands. For a long time after this there could be little law against aliens, there could hardly be such a thing as English nationality. Even had the king claimed a right to seize the lands of aliens, he would not have exercised it. Again, the territory within which, according to later law, subjects would be born to the king of England, was large; under Henry II. it became vast. It comprehended Ireland; at times (to say the least) it comprehended Scotland; it stretched to the Pyrenees. Then again, the law even of Bracton’s day acknowledged that a man might be a subject of the French king and hold land in France and yet be a subject of the English king and hold land in England. It was prepared to meet the case of a war between the two kings: the amphibious baron must fight in person for his liege lord, but he must also send his due contingent of knights to the opposite army.202 In generation after generation a Robert Bruce holds land on both sides of the Scottish border; no one cares to remember on which side of it he was born.203 Simon de Montfort obtained the Leicester inheritance; where he was born historians cannot tell us; it matters not. He obtained the Leicester inheritance though his elder brother Almaric was living. Almaric was adhering to the French king, the enemy of our king, and that might be a good reason for passing him by; but Almaric must solemnly resign his claim before Simon’s can be entertained.204
Growth of the law disabling aliens.It is, we believe, in the loss of Normandy that our law of aliens finds its starting point. In the first place, John seized the lands of those of his nobles who adhered to Philip, and preferred to be French rather than English. This was a forfeiture for treason. At the same time we see traces of that curious dislike of perpetual disherison which meets us in other quarters. Some of these lands, the terraeNormannorum, are given to new tenants in fee simple, but subject to a proviso that they may be taken away again if ever the Normans come back to their allegiance.205 In the second place, a permanent relation of warfare is established between England and France. It endures from the beginning of John’s reign until 1259 when Henry resigned his claim to Normandy. True that during this long half-century there was very little fighting and there were many truces; but all along the English theory was that Henry was by right Duke of Normandy and Count of Anjou, that the king of France was deforcing him of his inheritance, and that the day would come when the rebellious, or the invaded, provinces would obey their lawful lord. Thus a man who is living in obedience to the king of France is an enemy. If, says Bracton, such an one claims land against you, you may except against him; your exception however is not “peremptory,” it is “dilatory”; it may lose its force when our king enjoys his own again.206 What he says is fully borne out by recorded cases from the early years of Henry III. A claimant of land is met, not by the simple “You are an alien,” but by the far more elaborate “You are within the power of the king of France and resident in France, and it has been provided by the council of our lord the king that no subject of the king of France is to be answered in England until Englishmen are answered in France.”207 Then Matthew Paris tells us how in 1244 Saint Louis, urging that “no man may serve two masters,” insisted that all persons living in France must make choice between him and Henry, how Henry retorted by seizing the English lands of the Frenchmen, especially of the Normans, without giving them any chance of choosing an English nationality, and how Louis treated this retort as a breach of truce.208
The king and the alien.Blackstone is at no loss for reasons why an alien should not hold land in England, but when he has to explain why the king should seize the land which aliens acquire, we feel that he is in difficulties. He suggests that this forfeiture “is intended by way of punishment for the alien’s presumption in attempting to acquire any landed property.”209 The truth seems to be that in the course of the thirteenth century our kings acquired a habit of seizing the lands of Normans and other Frenchmen. The Normans are traitors; the Frenchmen are enemies. All this will be otherwise if a permanent peace is ever established. But that permanent peace never comes, and it is always difficult to obtain a restoration of lands which the king has seized. France is the one foreign country that has to be considered in this context; Germans and Italians come here as merchants, but they have no ancestral claims to urge and do not want English lands, while as to Scotland, owing to the English king’s claim to an overlordship or to some other reason, Balliols and Bruces hold land on both sides of the border until a long war breaks out between the two countries. To us it seems that the king’s claim to seize the lands of aliens is an exaggerated generalization of his claim to seize the lands of his French enemies. Such an exaggerated generalization of a royal right will not seem strange to those who have studied the growth of the king’s prerogatives.210
Growth of the king’s claim to the alien’s land.And so too Bracton’s “dilatory exception” becomes peremptory: “You are an alien and your king is at war with our king” becomes “You are an alien.” An English nation is gradually forming itself. Already there is a cry of “England for the English.” The king’s foreign favourites are detested; glad enough would Englishmen be if he would but seize their lands impartially and indiscriminately, and never endow another alien, be he Norman or Poitevin or Savoyard, with another inch of land. A trace of this feeling we may see when Bracton says that while the state of war endures the king cannot enable the alien to bring an action.211 Probably in Edward I.’s day the law is, not merely that an alien enemy cannot sue, but that an alien cannot acquire land. A curious story comes to us which is worthy of repetition. A tenant in chief of the crown died leaving two co-heiresses; King Henry granted the wardship and marriage of these two young ladies to Elyas de Rabayn; Elyas took one of them to wife and sent the other to be married beyond the seas so that he might obtain the whole inheritance. In 1290 her son, though born abroad, claimed his mother’s share; and claimed it successfully. The court defeated the scheme of the fraudulent guardian, but declared that its judgment was to form no precedent in favour of other aliens.212 From Edward’s day also we have letters of denization or of naturalization: the two would hardly as yet be distinguished. Though Elyas Daubeny was born beyond the seas, the king holds him for a pure Englishman and wills that he shall be held as such by all men and that he may sue in all courts notwithstanding any “exception” of alienage.213
The kinds of aliens.The law of Henry III.’s reign has to deal as a matter of fact with two and only two great classes of aliens. The first consists of Frenchmen who have claims to English lands. Such claims are in some cases ancestral, and these, as we have seen, cannot be heard while there is war or an abiding cause for war between France and England. In other cases the claimants are recipients of royal favours; they are the king’s half-brothers, the queen’s uncles or the attendants of these exalted persons; the king gives them lands and, except at a revolutionary moment, they hold their lands safely; some of them were born in provinces which de iure (so Englishmen think) belong to the king; all of them by doing homage to the king become his men, and this must be naturalization enough. The other great class consists of alien merchants; they do not come here to settle; they do not want land; they would be well content were they permitted to lodge where they pleased.
The alien merchant.Mere common law has little to do with these foreign merchants. Their business takes them into the chartered towns. The law under which they live is a mesh of privileges and of privileges that are hardly consistent. They themselves will have charters derived from the king; but they will be living in boroughs which have charters derived from the king, and first and foremost among the rights for which the burghers long is the right of confining the activity of foreign merchants within narrow bounds. The conflict goes on with varying fortunes from century to century. On the whole the king, the prelates and barons support the merchants; they are useful, they lend money, they lower prices, they will pay for favours; but often a weak king must give way and yield to the complaints of the burghers. Already the Great Charter provides that merchants may freely enter and dwell in and leave the realm; but the same Great Charter confirms all the ancient liberties and customs of London and the other boroughs, and thus takes away with one hand what it gives with the other.214 The burghers have a very strong opinion that their liberties and customs are infringed if a foreign merchant dwells within their walls for more than forty days, if he hires a house, if he fails to take up his abode with some reponsible burgher, if he sells in secret, if he sells to foreigners, if he sells in detail. In Henry III.’s day the struggle is but beginning. It reaches the first of its many climaxes in 1303 when Edward I. grants the great Carta Mercatoria.215 It will interest rather the economist than the lawyer, and rather the student of the fourteenth and fifteenth centuries than the student of earlier times.216
The alien and common law.We may perhaps regard Coke’s doctrine that the alien friend is protected by “personal actions” as ancient common law. In Edward I.’s day we even find that an Italian merchant resident in England, who as a Ghibelline had been ejected from his house in Florence by victorious Guelfs, hoped to recover damages for this wrong in the courts of the king of England; he failed, because “it is not the custom of England that any one should answer in England for a trespass committed in a foreign country in time of war or in any other manner.”217 The Carta Mercatoria of Edward I., the validity of which did not pass unquestioned, and statutes of Edward III. secured to aliens the benefit of a jury composed wholly or in part of aliens.218 In 1454 it is said that a foreign merchant may hire a house and defend his possession of it by an action of trespass.219 If we suppose this to have been ancient common law, still it must have been law which had but little chance of asserting itself; the burghers have steadily fought against it and very commonly have been successful.220 Littleton’s bold assertion that an alien can bring no action real or personal may be less open to exception than his commentator supposed,221 for in Littleton’s day we hear that the proper court for aliens who have come here under the king’s safe conduct is the Court of Chancery; “they are not bound to sue according to the law of the land, nor to abide the trial by twelve men and other solemnities of the law of the land, but shall sue in the Chancery and the matter shall be determined by the law of nature.”222 This is a doctrine characteristic of the fifteenth century. But all along it is as men privileged by the king rather than as men subject to ordinary law, that the foreign merchants get a hearing. They can seldom make their way to the king’s justices because the courts of the towns in which they live claim an exclusive cognizance of actions brought against the burgesses, and when the foreigners do get to the royal courts there is a contest between privilege and privilege. Probably the king can banish them at any time; his loyal subjects in the boroughs would not be sorry if he did, for these aliens are always taking the bread out of the mouths of honest folk. Then, at least in the thirteenth century, the common belief is that they are all usurers and therefore living in mortal sin. We are told that in 1240 Henry III. banished the so-called Caursini; but that they only lay hid for a time, the king conniving at their presence. A little while afterwards they are acquiring splendid palaces in London; no one dares attack them, for they call themselves the pope’s merchants; now and again the king will imprison a few, to the delight of their Jewish rivals; but he is half-hearted. And so there is little common law for these people.223
Has the merchant a peculiar status?Ought we to reckon merchants of all kinds, English and foreign, as forming one of the sorts or conditions of men known to the law? Hardly, though as the historian of our constitution has shown, they nearly become for political purposes one of the estates of the realm.224 Still they do not become this. Then in private law “merchantship,” if we may make that word, seems too indefinite and also seems to have too few legal consequences to permit of our calling it a status. We might illustrate this from modern law. Until lately no one but “a trader” could be made bankrupt; still we should hardly say that in 1860 “tradership” was a status. There was, so far as we are aware, but this one rule which marked off the “trader” from the “non-trader,” and a man became and ceased to be a trader without any solemnity by a process that we may call indefinite, though a court of law might have had to decide whether at a given moment that process had been accomplished.
The law merchantBefore the end of the thirteenth century “the law merchant” was already conceived as a body of rules which stood apart from the common law.225 But it seems to have been rather a special law for mercantile transactions than a special law for merchants. It would we think have been found chiefly to consist of what would now be called rules of evidence, rules about the proof to be given of sales and other contracts, rules as to the legal value of the tally and the God’s penny; for example, the law merchant took one view of the effect of an “earnest,” the common law another. These special mercantile rules were conceived as being specially known to merchants; in the courts of fairs and markets the assembled merchants declare the law; in Edward II.’s day twelve merchants are summoned from each of four cities to testify before the king’s bench about a doubtful point in the “lex mercatoria.” Also these rules are not conceived to be purely English law; they are, we may say, a ius gentium known to merchants throughout Christendom, and could we now recover them we might find some which had their origin on the coasts of the Mediterranean. But this is not the place for their discussion, for we take the law merchant to be not so much the law for a class of men as the law for a class of transactions.
General idea of the Jew’s position.The Jew came to England in the wake of the Norman Conqueror. That no Israelites had ever dwelt in this country before the year 1066 we dare not say; but if so, they have left no traces of their presence that are of any importance to us.227 They were brought hither from Normandy, brought hither as the king’s dependants and (the word will hardly be too strong) the king’s serfs. In the first half of the twelfth century their condition was thus described by the author of the Leges Edwardi in a passage which suggests that among the regalia to which the Norman barons aspired was the privilege of keeping Jews of their own:—“It is to be known that all the Jews wheresoever they be in the realm are under the liege wardship and protection of the king; nor may any of them without the king’s licence subject himself to any rich man, for the Jews and all that they have are the king’s, and should any one detain them or their chattels, the king may demand them as his own.”228 This gives us one of the two main ideas that our law in later times has about the Jew:—he with all that he has belongs to the king. Bracton puts the same thought in these words:—“The Jew can have nothing that is his own, for whatever he acquires, he acquires, not for himself, but for the king; for the Jews live not for themselves but for others, and so they acquire not for themselves but for others.”229 The other main idea is one which will not seem strange to us after what we have said of villeinage. This servility is a relative servility; in relation to all men, save the king, the Jew is free. He will require some special treatment, for if he is to be here at all and do any good, he must be allowed to do things that are forbidden to Christians, notably to take interest on money lent. And courts of justice must pay some regard to his religion; for example, they must suffer him to swear upon the roll of the law instead of the gospels; but in general, if his royal master’s interests are not concerned, he is to be dealt with as though he were a Gentile. A third principle is accepted—the Jews themselves would desire its acceptance—namely, that when the interests of neither the king nor any other Christian are concerned, the Jews may arrange their own affairs and settle their own disputes in their own way and by their own Hebrew law.230
The exchequer of the Jews.For about a century and a half they were an important element in English history. In spite of the king’s exactions and of occasional outbursts of popular fury, they throve. They were wealthy; they bore an enormous weight of taxation.231 We may say that at times they “financed” the kingdom; there were few great nobles who had not at one time or another borrowed money from the Israelite, and paid the two pence per pound per week that was charged by way of usury. What the great folk did, the smaller folk did also. This money-lending business required some governmental regulation. In the first place, the king had a deep interest in it, for whatever was owed to a Jew was potentially owed to the king, and he would naturally desire to have ready at hand written evidence that he could use against his debtors. In the second place, this matter could hardly be left to the ordinary English tribunals. For one thing, they would do but scant justice to the Jew, and therefore but scant justice to the king, who stood behind the Jew. For another thing, it is highly probable that the Jewish “gage” was among Englishmen a novel and an alien institution, since it broke through the old law by giving rights in land to a creditor who did not take possession. In 1194 therefore an edict was issued about these Jewish loans.232 In every town in which the Jews lived, an office, as we should say, was established for the registration of their deeds. All loans and payments of loans were to be made under the eye of certain officers, some of them Christians, some of them Jews, and a copy or “part” of every deed was to be deposited in an “ark” or chest under official custody. A few years later a department of the royal exchequer— the exchequer of the Jews—was organized for the supervision of this business.233 At its head were a few “Justices of the Jews.” We hear for a while that some of these justices are themselves Jews, and all along Jews filled subordinate offices in the court; and this was necessary, for many of the documents that came before it were written in the Hebrew language. This exchequer of the Jews was, like the great exchequer, both a financial bureau and a judicial tribunal. It managed all the king’s transactions—and they were many—with the Jews, saw to the exaction of tallages, reliefs, escheats and forfeitures, and also acted judicially, not merely as between king and Jew, but also as between king and Gentile when, as often happened, the king had for some cause or another “seized into his hand” the debts due to one of his Jews by Christian debtors. Also it heard and determined all manner of disputes between Jew and Christian. Such disputes, it is true, generally related to loans of money, but the court seems to have aimed at and acquired a competence, and an exclusive competence, in all causes whether civil or criminal in which a Jew was implicated, unless it was some merely civil cause between two Hebrews which could be left to a purely Jewish tribunal. For this reason we can read very little of the Jews in the records of any other court, and until such rolls of the Jewish exchequer as exist have been published, we shall be more ignorant than we ought to be.234
Vice of the law applied to Jews.The system could not work well; it oppressed both Jew and Englishmen. Despised and disliked the once chosen people would always have been in a society of medieval Christians; perhaps they would have been accused of crucifying children and occasionally massacred; but they would not have been so persistently hated as they were, had they not been made the engines of royal indigence. From the middle of the thirteenth century onwards the king was compelled to rob them of their privileges, to forbid them to hold land, to forbid them even to take interest.235 This last prohibition could not be carried into effect; there was little or nothing that the Jews could profitably do if they were cut off from lending money. Their expulsion in 1290 looks like the only possible solution of a difficult problem.
A few more words may be said about their legal condition for it was curious and may serve to illustrate some general principles of our medieval law.
Relation of the Jew to the king.The Jew’s relation to the king is very much like the villein’s relation to his lord. In strictness of law whatever the Jew has belongs to the king; he “acquires for the king” as the villein “acquires for his lord.” But, just as the lord rarely seizes his villein’s chattels save for certain reasons, so the king rarely seizes the Jew’s chattels save for certain reasons; until the seizure has been made, the villein or the Jew is treated as an owner and can behave as such. Again, as the lord is wont to be content with the customary services, heriots, merchets and so forth of his villeins and to tallage them only at regular intervals, so the king, unless he is in some unusual strait, will treat his Jews by customary rules; for example he will not exact from the heir by way of relief more than one-third of the inheritance.236 The king respects the course and practice of his Scaccarium Iudaeorum, the custom of his Jewry, much as the lord respects the custom of the manor. Again, the king does justice upon and between his Jews, as the lord does justice upon and between his villeins. The maxim that what is the Jew’s is the king’s is not infringed when the king after a judicial hearing decides that for a certain offence a certain Jew must pay a certain sum, and just so the lord keeps in the background his right to seize all the goods of every villein while his court is condemning this or that villein to a fine, a forfeiture or an amercement. Again, the king can grant privileges to his Jews— Henry II. gave them a charter and John a magnificent charter—without emancipating them or fundamentally changing their legal condition.237 Lastly the lord when his own interests are not at stake is content that his villeins should settle their own disputes in their own way under the supervision of his steward, and so the king is content that, as between Jews, Jewish law shall be administered by Jewish judges.
The Jew’s servility.The analogy may not be perfect. It is but too possible that in his dealings with his Jews the king’s rapacity was checked by few considerations that were not prudential, and that the course and practice of his Jewry extracted from them the utmost that a farsighted selfishness could allow itself to demand. The villein was a Christian; the custom of the manor had ancient roots and was closely akin to the common law. The relation between king and Jew was new, at least in England, and it was in many respects unique; the Jew belonged to a despicable race and professed a detestable creed. For all this, the analogy holds good at the most important point: the Jew, though he is the king’s serf, is a freeman in relation to all other persons. We call him a serf. We have no direct authority for so doing, for we have seen no text in which he is called servus; but Bracton has gone very near this word when he said that what the Jew acquires he acquires for the king. Not only can the king mortgage or lease his Jewry, his Iudaismum, as a whole,238 but there is one known case in which an individual Jew was first given by the king to his son and afterwards enfranchised; donavimus libertati was the phrase used; hereafter in consideration of an honorary rent of a pair of gilt spurs he is to be free from all tallages, aids, loans and demands.239
The Jew in relation to the world at large.The Jew’s freedom in relation to all others than his master seems to have been amply protected by the exchequer. So far as we can see he found there a favourable audience. He could sue and be sued, accuse and be accused, and the rules of procedure, which in the main were the ordinary, English rules, were not unduly favourable to his Christian adversary. He “made his law” upon the books of Moses; he was not required to do battle; he might put himself upon a jury one half of which would consist of men of his own race and creed. He enjoyed a splendid monopoly; he might frankly bargain for interest on his loans and charge about forty-three per cent per annum.240 Unless we are mistaken, no law prevented him from holding lands,241 though it is not until late in the day that he appears as a landholder on a large scale, and when this happens it is a scandal that cries aloud for removal. He had a house, sometimes a fine house, in the town. His choice of a dwelling place seems to have been confined to those towns which had “arks,” or as we might say “loan registries”; he would hardly have wished to live elsewhere; but there were boroughs which had obtained royal charters enabling them to exclude him.242 Many lands were gaged to him, but, though we do not fully understand the nature of these gages, it seems to us that the Hebrew creditor seldom took, or at all events kept, possession of the land, and that his gage was not conceived as giving him any place in the scale of lords and tenants. However, late in Henry III.’s reign it became apparent that the Jews were holding lands in fee and that they had military tenants below them; they were claiming the wardships and marriages of infant heirs, and were even daring to present Christian clerks to Christian bishops for induction into Christian churches.243 This was not to be borne. In 1271 the edict went forth that they were no longer to hold free tenement, though they might keep their own houses.244 Some galling restrictions had already been laid upon them at the instance of the church; they were to fast in Lent; they were to wear distinctive badges upon their garments; they were not to keep Christian servants or have intercourse with Christian women; they were not to enter the churches; they were to acquire no more schools or synagogues than they already possessed.
Law between Jew and Jew.As between Jew and Jew, if the king’s interests were in no wise concerned, Jewish tribunals administered the Jewish law (lex Iudaica). Questions of inheritance, for example, do not come before the ordinary English tribunals, and come but rarely and incidentally before the exchequer of the Jews. When Hebrew dealt with Hebrew the document, the shetar (Lat. starrum, Fr. estarre) which recorded the transaction was written in the Hebrew language and the parties to it, instead of affixing their seals (some Jews had seals), signed their names.245 Often such a document was executed in the presence of official witnesses and was sanctioned by an oath upon the law. The precise nature of the tribunals which did justice between Jews we cannot here discuss; it is a matter for those who are learned in Hebrew antiquities; but to all appearance they were not mere boards of arbitrators but courts with coercive power.246 Whether they aspired to execute their decrees by physical force we do not know; but apparently, like our own ecclesiastical courts, they could wield the weapon of excommunication, and this spiritual sword may have been sufficient for the accomplishment of all their purposes.247 To Gentiles at all events it seemed that the Jews had “priests” and “bishops” (presbyteri, sacerdotes, episcopi) who did justice among them. Over the appointment of these officers the king exercised a control, not very unlike that which he exercised over the appointment of English bishops.248 The Jews of each town, or of each synagogue, and again all the Jews of England, constituted a communa with which he could deal as a single whole. He could impose a tax or a penalty upon it, and leave it to settle as between its various members the final incidence of the impost.
Influence of the Jew on English law.Whether the sojourn of the Jews in England left any permanent marks upon the body of our law is a question that we dare not debate, though we may raise it. We can hardly suppose that from the Lex Iudaica, the Hebrew law which the Jews administered among themselves, anything passed into the code of the contemptuous Christian. But that the international Lex Iudaismi249 perished in 1290 without leaving any memorial of itself is by no means so certain. We should not be surprised to learn that the practice of preserving in the treasury one “part” (the pes or “foot”) of every indenture which recorded a fine levied in the royal court, was suggested by the practice of depositing in an official ark one copy of every bond given to a Jew. Both practices can be traced to the same year, the year 1194.250 Again, very early in Edward I.’s day we hear that “according to the assize and statutes of the king’s Jewry, his Jews ought to have one moiety of the lands, rents and chattels of their Christian debtors until they shall have received their debts.”251 A few years afterwards, and just before the banishment of the Jews, a famous statute gave a Christian creditor a very similar remedy, the well-known writ of elegit, which therefore may be a lasting monument of the Hebrew money-lender.252 But at any rate we ought to remember the Jew when we make our estimate of the thirteenth century. Landowners are borrowing large sums, and the enormous rate of interest that they contract to pay, if it shows the badness of the security that is offered for the loan—the Jew holds his all at the king’s will and usury does not run against infants; the security therefore is very bad—shows also the intensity of the demand for money. Many an ancient tie between men,—the tie of kinship, the tie of homage—is being dissolved or transmuted by the touch of Jewish gold; land is being brought to market and feudal rights are being capitalized.
Outlaws and Convicted Felons
Outlawry.We must now glance briefly at certain classes of men who for their offences or their contumacy are deprived of some of those rights which their “lawful” neighbours enjoy. Among them we reckon outlaws, convicted felons and excommunicates.
The history of outlawry can be better told in connexion with the criminal law than in the present context. Outlawry is the last weapon of ancient law, but one that it must often use. As has been well said, it is the sentence of death pronounced by a community which has no police constables or professional hangmen.253 To pursue the outlaw and knock him on the head as though he were a wild beast is the right and duty of every law-abiding man. “Let him bear the wolf’s head”:254 this phrase is in use even in the thirteenth century. But as the power of the state and the number of its weapons increase, outlawry loses some of its gravity; instead of being a substantive punishment, it becomes mere “criminal process,” a means of compelling accused persons to stand their trial. Just in Bracton’s day it is undergoing a further degradation. In one place he says that recourse can be had to outlawry only when there is an accusation of one of those crimes which are punished by loss of life or member. This, no doubt, is the old doctrine, and his whole exposition of the effects of outlawry is in harmony with it. At a later time he has glossed his text:—there may, he says, be outlawry even when the offence is no felony but a mere transgressio, provided that it be a breach of the king’s peace.255 This is important. In course of time our law is going to know two kinds of outlawry; with allusion to the analogous process of excommunication we might call them the greater and the less. A man outlawed on a charge of felony is as one attainted of that felony; while if outlawed for a misdemeanour or in a civil action (for in the course of the fourteenth century the process of outlawry spreads rapidly through many of the personal actions) he is in no such evil plight. But this distinction belongs to the future. The learning of outlawry as it is in Bracton is still the learning of outlawry for felony.
Condition of the outlaw.The outlaw’s life is insecure. In Bracton’s day he ought not to be slain unless he is resisting capture or fleeing from it; but it is every one’s duty to capture him. And out in Gloucestershire and Here-fordshire on the Welsh march custom allows that he may be killed at any time.256 If knowing his condition we harbour him, this is a capital crime.257 He is a “lawless man” and a “friendless man.”258 Of every proprietary, possessory, contractual right he is deprived; the king is entitled to lay waste his land and it then escheats to his lord; he forfeits his chattels to the king; every contract, every bond of homage or fealty in which he is engaged is dissolved. If the king in-laws him, he comes back into the world like a new-born babe, quasi modo genitus, capable indeed of acquiring new rights, but unable to assert any of those that he had before his outlawry. An annihilation of the outlawry would have a different operation, but the inlawed outlaw is not the old person restored to legal life; he is a new person.259 The law of forfeiture and escheat for felony is taking an extremely severe form. It is held that the conviction or the outlawry “relates back” to the moment at which the crime was perpetrated, so that acts done by the felon in the interim are avoided.260 It is held that the felon’s blood is corrupt and that a child born to him after the felony is incapable of inheriting, not merely from him, but from any one else.261 Though we speak but briefly of outlawry, we are speaking of no rarity; the number of men outlawed at every eyre is very large; ten men are outlawed for one who is hanged.
Excommunication.Closely allied to outlawry is excommunication; it is in fact an ecclesiastical outlawry,262 and, like temporal outlawry, though once it was the law’s last and most terrible weapon against the obstinate offender, it is now regarded as a normal process for compelling the appearance in court of those who are accused. Indeed as regards the laity, since the spiritual courts cannot direct a seizure of body, lands or goods, those courts must, if mere citations fail to produce an appearance, at once have recourse to their last weapon. Then, as ordained by William the Conqueror, the lay power comes to their aid.263 If the excommunicate does not seek absolution within forty days (this period seems to be fixed already in the twelfth century264 ), the ordinary will signify this to the king; a writ for the arrest of the offender will be issued, and he will be kept in prison until he makes his submission.265
Spiritual leprosy.The excommunicate is, says Bracton, a spiritual leper; he can do no valid act in the law; he cannot sue; but he can be sued, for he must not take advantage by his own wrong-doing; one may not pray with him, talk with him, eat with him.266 The clergy from time to time complain that this precept is not well observed and that the king is backward in the arrest of excommunicates.267 In spite of the condemnation which had fallen on the Constitutions of Clarendon, our kings seem to have stedfastly asserted the Conqueror’s principle that their tenants in chief, at all events their ministers, sheriffs and bailiffs, were not to be excommunicated without royal licence. Edward I. compelled Archbishop Peckham to withdraw a general sentence pronounced against those ministers who were remiss in their duty of capturing excommunicates268 and in 1293 the Archbishop of York made fine with four thousand marks for having excommunicated the Bishop of Durham; he had failed to take the distinction between what was done by his suffragan bishop and what was done by a palatine earl.269 A practice of the lay courts yet more objectionable to the clergy was that of directing a bishop to absolve an excommunicate. They did not treat the spiritual courts as inferior courts, they did not entertain appeals or evoke causes; but still they had to protect their own jurisdiction. A suit would be instituted in the bishop’s court about some matter, which, according to the thinking of the king’s justices, did not lie within its sphere; to those justices the defendant would come for a writ of prohibition; meanwhile he would be excommunicated, and then the plaintiff and the ecclesiastical judges, when called before the royal court, would refuse to answer one who was outside the pale of the church. In such a case it is not an unheard of thing that the lay court should command the bishop to pronounce an absolution;270 but much the same end may be attained if the lay court simply ignores a sentence which in its opinion has been obtained in fraud of its rights.271 On the whole, however, before the end of Henry III.’s reign the two sets of courts are working together harmoniously. There is always a brisk border warfare simmering between them, in which, as is natural, the tribunal which has the direct command of physical force is apt to gain the victory; but this is no longer a world-shaking conflict between church and state, it is rather a struggle between two professional classes, each of which likes power and business and has no dislike for fees and perquisites. In the eyes of the secular lawyers the baronies of the bishops are a pledge that the censures of the church will not be used so as to deprive the king of his rights.272 Even an appeal to Rome is duly respected by the lay power—more than duly respected, some English churchmen may have thought, for thereby the wealthy excommunicate is often enabled to postpone to an indefinite date the evil day when he must go to prison or submit himself.273
Excommunication and civil rights.We have compared excommunication to outlawry; but, at least in this world, the consequences of the temporal were far more severe than those of the spiritual ban. The excommunicate forfeited none of those rights which were sanctioned by lay tribunals. He became incapable of asserting them by action; but the “exception of excommunication” was only a dilatory, not a peremptory, plea, and the plaintiff might go on with his action so soon as he had made his peace with the church.274 Despite their adoption of the bold phrase “The excommunicate can do no act in law,” our secular judges seem to have thought that they had given sufficient aid to the spiritual power when they had shut their ears to the funesta vox of the church’s outlaw.275 They stopped short of declaring that he could not acquire rights or dispose of his property, but those, who knowing of his condition had dealings with him, were guilty of an offence which the ecclesiastical courts might punish if they pleased.
Lepers, Lunatics and Idiots
The leper.This would not be the place in which to speak at any length of the legal disability of those who are suffering from mental or bodily disease; but a few words should be said of lepers and of idiots. Bracton compares the excommunicate to the leper, and the leper is excommunicate in a very real sense. He is put outside the community of mankind; the place for him is the lazar house.276 Not only is he incapable of suing and of making gifts or contracts, but he is even incapable of inheriting. He still remains the owner of what was his before his “segregation,” but he cannot inherit.277
The idiot.Among the insane our law draws a marked distinction; it separates the lunatic from the idiot or born fool.278 About the latter there is a curious story to be told. In Edward I.’s day the king claims a wardship of the lands of all natural fools, no matter of whom such lands may be holden. He is morally bound to maintain the idiots out of the income of their estates, but still the right is a profitable right analogous to the lord’s wardship of an infant tenant. But there is reason to believe that this is a new right, or that at any rate there has been a struggle for it between the lords and the king. If idiocy be treated as similar to infancy, this analogy is in favour of the lords; at all events if the idiot be a military tenant, feudal principles would give the custody of his land not to the king, but to the lord, while of socage land some kinsman of the fool might naturally claim a wardship. Edward I. was told that by the law of Scotland the lord had the wardship of an idiot’s land.279 But in England a different rule had been established, and this, as we think, by some statute or ordinance made in the last days of Henry III. If we have rightly read an obscure tale, Robert Walerand, a minister, justice and favourite of the king, procured this ordinance foreseeing that he must leave an idiot as his heir and desirous that his land should fall rather into the king’s hand than into the hands of his lords.280 The king’s right is distinctly stated in the document known as Praerogativa Regis, which we believe to come from the early years of Edward I. The same document seems to be the oldest that gives us any clear information about a wardship of lunatics.The lunatic. The king is to provide that the lunatic and his family are properly maintained out of the income of his estate, and the residue is to be handed over to him upon his restoration to sanity, or, should he die without having recovered his wits, is to be administered by the ordinary for the good of his soul; but the king is to take nothing to his own use.281 Once more we see prerogatival rights growing, while feudal claims fall into the background; and in the case of lunacy we see a guardianship, a mund, which is not profitable to the guardian, and this at present is a novel and a noteworthy thing.282
Legal position of women.We have been rapidly diminishing the number of “normal persons,” of free and lawful men. We have yet to speak of half the inhabitants of England. No text-writer, no statute, ever makes any general statement as to the position of women.283 This is treated as obvious, and we believe that it can be defined with some accuracy by one brief phrase:—private law with few exceptions puts women on a par with men; public law gives a woman no rights and exacts from her no duties, save that of paying taxes and performing such services as can be performed by deputy.
Women in private law.A very different doctrine is suggested by one ancient rule. A woman can never be outlawed, for a woman is never in law. We may well suppose this to come from a very remote time. But in Bracton’s day it means nothing, for a woman, though she cannot be outlawed, can be “waived,” declared a “waif,” and “waiver” seems to have all the effects of outlawry.284 Women are now “in” all private law, and are the equals of men. The law of inheritance, it is true, shows a preference for males over females; but not a very strong preference, for a daughter will exclude a brother of the dead man, and the law of wardship and marriage, though it makes some difference between the male and the female ward, is almost equally severe for both. But the woman can hold land, even by military tenure, can own chattels, make a will, make a contract, can sue and be sued. She sues and is sued in person without the interposition of a guardian; she can plead with her own voice if she pleases; indeed— and this is a strong case—a married woman will sometimes appear as her husband’s attorney.285 A widow will often be the guardian of her own children; a lady will often be the guardian of the children of her tenants.
Women in public law.The other half of our proposition, that which excludes women from all public functions, was subject to few if any real exceptions. In the thirteenth century the question whether a woman could inherit the crown of England must have been extremely doubtful, for the Empress had never been queen of England. Queens-consort and queens-dowager had acted as regents during the absence of their husbands or sons and presided in court and council.286 The line between office and property cannot always be exactly marked; it has been difficult to prevent the shrievalties from becoming hereditary; if a woman may be a comitissa, why not a vice-comitissa?287 Ornamental offices, hereditary grand serjeanties, women are allowed to carry to their husbands and to transmit to their heirs. So also, when the constitution of the House of Lords takes shape, the husbands of peeresses are summoned to sit there as “tenants by the curtesy,”288 but peeresses are not summoned. “The nearest approach to such a summons,” says Dr. Stubbs, “is that of four abbesses, who in 1306 were cited to a great council held to grant an aid on the knighting of the prince of Wales.”289
Women in court.In the nineteenth century our courts have more than once considered the question whether women did suit to the local moots, more especially to the county court, and have come to what we think the right conclusion.290 Undoubtedly a woman might owe suit to the hundred or the county,291 or rather (for this we think to be the truer phrase) the land that she held might owe suit. Also it is certain that some sheriffs in the latter part of Henry III.’s reign had insisted on the personal attendance of women, not indeed at the county courts, but at those plenary meetings of the hundred courts that were known as the sheriff’s turns. But it is equally certain that this exaction was regarded as an abuse and forbidden.292 We cannot doubt, though the evidence on this point is rather tacit than express, that women did the suit due from their land by deputy. Again, we never find women as jurors, except when, as not unfrequently happened, some expectant heir alleged that there was a plot to supplant him by the production of a supposititious child, in which case a jury of matrons was employed.293 To say that women could not be jurors is in this period almost equivalent to saying that they could not give evidence, but their names sometimes appear among the witnesses of charters.294 In all actions a plaintiff had to produce a suit (secta) of persons who in theory were prepared to testify on his behalf; we cannot find that he ever brought women. One of the actions in which such “suitors” were of importance was the action for deciding whether a person was free or villein, and here Britton expressly tells us that a woman’s testimony was not received, “for the blood of a man shall not be tried by women”; the word of women, we are elsewhere told, cannot be admitted as proof, “because of their frailty.”295 In the ecclesiastical courts the rule seems to have been that a woman’s compurgators ought to be women,296 just as a man’s compurgators ought to be men, but apparently in the king’s court a woman had to find male oath-helpers.297 In one respect a woman’s capacity of suing was curtailed by her inability to fight. A rule older than, but sanctioned by, the Great Charter prevented her from bringing an appeal of felony unless the crime of which she complained was violence to her person or the slaughter of her husband.298 In these excepted cases the accused must submit to trial by jury; at an earlier time one or other of the parties would have been sent to the ordeal.299 In the thirteenth century this limitation of the right to make criminal charges was already becoming of little importance, since the procedure by way of appeal (that is, of private accusation) was giving place to the indictment.
Summary.On the whole we may say that, though it has no formulated theory about the position of women, a sure instinct has already guided the law to a general rule which will endure until our own time. As regards private rights women are on the same level as men, though postponed in the canons of inheritance; but public functions they have none. In the camp, at the council board, on the bench, in the jury box there is no place for them.300
Married women.We have been speaking of women who are sole, who are spinsters or widows. Women who have husbands are in a different position. This, however, can be best discussed as part of family law, and under that title we shall also say what has to be said of infants. But here it may be well to observe that the main idea which governs the law of husband and wife is not that of an “unity of person,” but that of the guardianship, the mund, the profitable guardianship, which the husband has over the wife and over her property.
Corporations and Churches301
The corporation.Every system of law that has attained a certain degree of maturity seems compelled by the ever-increasing complexity of human affairs to create persons who are not men, or rather (for this may be a truer statement) to recognize that such persons have come and are coming into existence, and to regulate their rights and duties. In the history of medieval Europe we have to watch on the one hand the evolution of groups (in particular, religious groups and groups of burgesses) which in our eyes seem to display all or many of the characteristics of corporations, and on the other hand the play of thought around that idea of an universitas which was being slowly discovered in the Roman law-books.
Analysis of the corporation.We have become so familiar with the idea of “a corporation aggregate of many” that we have ceased to wonder at it. When we are told by statute that the word “person” is to include “body politic,” that seems to us a very natural rule.302 Nevertheless, this idea was gradually fashioned, and when we attempt to analyze it we find that it is an elastic because it is, if we may so say, a very contentless idea, a blank form of legal thought. Little enough in common have the divers corporations known to English law: for example, the Ecclesiastical Commissioners for England; the Dean and Chapter of Ely; the Chancellor, Masters and Scholars of the University of Oxford; the Mayor, Aldermen and Burgesses of the Borough of Cambridge; the Governor and Company of the Bank of England; the Great Northern Railway Company; Styles, Nokes and Company (Limited). Among “natural persons” the law for a long time past has been able to single out one class as being normal or typical and to treat other classes as exceptional; and to this we may add that in course of time some of the exceptional classes disappear; the noble class disappears, the unfree class disappears. Far otherwise is it with the “artificial persons” or “group-persons”; we can hardly call one corporation more normal than another and modern legislation is constantly supplying us with new kinds. Thus we are not likely to find the essence of a corporation in any one rule of law. If, for example, an English lawyer would make all turn on the common seal, he would be setting up a merely English rule as a necessary maxim of jurisprudence; nor only so, for he would be begging an important question about the early history of corporations in England. Some again may feel inclined to say that a corporation must have its origin in a special act of the State, for example, in England a royal charter; but they again will be in danger of begging a question about ancient history, while they will have difficulty in squaring their opinion with the modern history of joint-stock companies. Modern legislation enables a small group of private men to engender a corporation by registration, and to urge that this is the effect of “statute” and not of “common law” is to insist upon a distinction which we hardly dare carry beyond the four seas. Or, to come to a more vital point, shall we demand that an individual corporator shall not be liable for the debts of the corporation? “Si quid universitati debetur singulis non debetur; nec quod debet universitas singuli debent”303 —is not this the very core of the matter? Once more modern legislation bids us pause:—there is no reason why a statute should not say that a judgment obtained against a corporation can be enforced against all the lands and all the goods of every single corporator, and this although the corporation still exists:—in ordering that this be so, the legislature does not contradict itself.304 Nor again is it only from modern statute, that we receive this warning; our ancient common law gives us the same warning in unmistakable terms. If we insist that common law cannot hold the singuli liable for the debt of the universitas, we shall find little to say about corporations in any century earlier than the fifteenth.
Beginnings of corporateness.Hitherto the lesson that we have been taking to ourselves is that we are not to deny the presence of the idea of a corporation merely because it is not producing all of what we consider its natural effects. The warning is equally necessary that in remote times we may somewhat easily discover corporations that never existed. The history of the earlier part of our own century proves that large commercial enterprises may be conducted and much done in the way of subordinate government by aggregates of men that are not incorporated. The law of tenancy in common and joint tenancy, the law of partnership, these have been found equal to many heavy and novel demands. And when we turn to a far-off past we may be in great danger of too readily seeing a corporation in some group of landholders, which, if modern distinctions are to be applied at all, would be better classed as a group of joint tenants than as a corporation.
Personality of the corporation.The core of the matter seems to be that for more or less numerous purposes some organized group of men305 is treated as an unit which has rights and duties other than the rights and duties of all or any of its members. What is true of this whole need not be true of the sum of its parts, and what is true of the sum of the parts need not be true of the whole. The corporation, for example, can own land and its land will not be owned by the sum of the corporators; and, on the other hand, if all the corporators are co-owners of a thing, then that thing is not owned by the corporation. This being so, lawyers from the thirteenth century onwards have been wont to attribute to the corporation a “personality” that is “fictitious” or “artificial.” Now “person” and “personality” seem to be appropriate words, and, if they were not at our disposal, we should be driven to coin others of a similar import.306 The corporate unit has become a subject of rights and duties. On the other hand, the adjectives which are often used to qualify this personality are open to serious objection, since they seem to speak to us of some trick or exploit performed by lawyers and to suggest a wide departure of legal theory from fact and common opinion. It may at least be plausibly maintained that the subject of those rights and duties which we ascribe to the corporation is no figment but the organized group of men, though this group is treated as pure unit. Unless all social and political organization deserves to be called fictitious, a contract between a municipal corporation and a joint-stock company is not a relationship between two fictions; it is a relationship between two groups, but between two groups each of which is so organized that for the purpose of the matter in hand, and for many other purposes, it can be treated as an indivisible unit and compared to a man.
The anthropomorphic picture of a corporation.One of the difficulties that beset us at this point is that we are tempted or compelled to seek the aid of those inadequate analogies that are supplied to us by the objects which we see and handle. First we picture to ourselves a body made up of men as a man’s body is made up of members. Then we find ourselves rejecting some of the inferences which this similitude, this crude anthropomorphism,307 might suggest. For instance, we have to admit that every “member” may be injured while the whole “body” suffers no injury. And then perhaps we say in our haste that the corporation which has rights and duties can be no better than fiction or artifice. But all that is proved by the collapse of such analogical reasoning is that social organization differs from, if it also resembles, that organization which the biologist studies; and this should hardly need proof.
Is the personality fictitious?Were we to digress to modern times, we might be able to show that the theory which speaks of the corporation’s personality as fictitious, a theory which English lawyers borrowed from medieval canonists, has never suited our English law very well. It should at all events be known that on the continent of Europe this doctrine no longer enjoys an undisputed orthodoxy either among the students of the Roman universitas308 or among the students of medieval and modern corporations. But here we are dealing with a time when in our own country the need for any idea of a corporation, whether as persona ficta or as “group-person,” has hardly become evident.
The corporation at the end of the middle ages. Now if for a moment we take our stand in Edward IV.’s reign, when the middle ages are nearing their end, we can say that the idea of a corporation is already in the minds of our lawyers; it may trouble them,—this is shown by their frequent discussions about its nature—but still it is there.309 First we notice that they already have a term for it, namely, corporacion, for which corps corporat and corps politik are equivalents. Then under this term several entities which have little in common have been brought: in particular, abbot and convent, dean and chapter, mayor and commonalty. With such “incorporated bodies” they contrast aggregates of men that are not incorporated, townships, parishes, gilds.310 They demand that incorporatedness shall have some definite and authoritative commencement; the corporation does not grow by nature; it must be made, by the act of parliament, or of the king, or of the pope,311 though prescription may be equivalent to royal charter. The rule that the corporation can do no act save by a writing under its common seal they enforce with severity; it is an anomaly, a concession to practical necessities, that the commands of the corporation about petty affairs can come to its servants through less formal channels.312 The corporation is invisible, incorporeal, immortal; it cannot be assaulted, or beaten or imprisoned; it cannot commit treason; a doubt has occurred as to whether it can commit a trespass,313 but this doubt (though it will give trouble so late as the year 1842314 ) has been rejected by practice, if not removed by any consistent theory.315 We even find it said that the corporation is but a name.316 On the other hand, it is a person.317 It is at once a person and yet but a name; in short, it is persona ficta.
The corporation and its head. Anthropomorphism.The main difficulty that the lawyers have in manipulating this idea is occasioned by the fact that almost every corporation has a “head,” which head is separately and expressly designated by the formal title of the juristic person. It is regarded as an anomaly that at Ripon there should be a corporation of canons without a head;318 normally there is a head; the ideal person is not the Convent of St. Albans, the Chapter of Lincoln, the Commonalty of Norwich, but the Abbot and Convent of St. Albans, the Dean and Chapter of Lincoln, the Mayor, Sheriffs and Commonalty of Norwich. This keeps alive the anthropomorphic idea. In 1481 a puzzling question arose as to whether when a dean and chapter brought an action, a juror might be challenged on the ground that he was brother to one of the canons. An advocate who urges that the juror is “a stranger to the chapter, for it is a body of such a nature that it can have neither brother nor cousin,” none the less concedes that peradventure it might have been otherwise had the juror been brother to the dean.319 Elsewhere the relation between dean and chapter is compared to that between husband and wife; “the chapter is covert by the dean as the wife is coverte by her husband.”320 From the same year, 1481, we get one of the most interesting cases in all the Year Books:321 —The Abbot of Holme sued the Mayor, Sheriffs and Commonalty of Norwich on a bond, and they pleaded that when the bond was made the then abbot had got the then mayor in prison and extorted the bond by duress.322 The lawyers very generally admit that the corporation itself cannot be in prison or suffer duress, and that it would be no defence to urge that when the bond was made some few of the citizens of Norwich were (as they generally would be) in gaol. But then in this case “the head” of the corporation was incarcerated. “I tell you, Sir,” says counsel for the city,323 “that every body politic is made up of natural men. And as regards what has been said touching its inseverability, I do not admit that; for they allow that mayor, sheriffs and commonalty make up a single body; here then are members, namely, the mayor is one member . . . the sheriffs another member . . . the third is the commonalty . . . In this case there is an alleged imprisonment of one of the distinct members named in the title of the corporation, to wit, the mayor, who is the head and (as in a body natural) the principal member . . . and if one member of the body natural be restrained or beaten, that is a restraint or battery of the whole body.” This idea that a corporation consists of head and members, that every act of the corporation requires the assent of its head, that, if for a while it is headless, it is capable of no act save that of electing a new head, has given trouble in more recent times and is perhaps capable of giving trouble even at the present day;324 it is a relic of what we have called anthropomorphism. In Edward IV.’s day we are told325 that the Mayor and Commonalty of Newcastle gave a bond to the person who happened to be mayor, naming him by his personal name. It was held void, for a man cannot be bound to himself. So long as such a decision for such a reason is possible, the modern idea of a corporation is not secure; at any rate it is hampered by an inconsistent and older idea. Still in the Year Books of Edward IV. that idea is present, nay, prominent, and some important rules of law in which it is implied have already been settled. In particular it is established that if the corporation becomes liable upon contract or for tort, this does not give a remedy against the persons, lands or goods of the corporators; the corporation itself is liable; execution will be done only on its lands and its goods.
The corporation vanishes as we pursue it.We go back but a little way in the Year Books and the idea that we have been watching begins to disappear. The figure of the ideal person vanishes, or rather it seems at times to become a mere mass of natural persons. One instance will serve to illustrate this change. So late as 1429 an action of trespass was brought against the Mayor, Bailiffs and Commonalty of Ipswich and one J. Jabe.326 The defendants pleaded the marvellous plea that Jabe was one of the commonalty and therefore was named twice over. If the defendants are found guilty, then (it was urged) Jabe will be charged twice over; besides he may be found not guilty and the commonalty guilty: that is to say, he may be found both guilty and not guilty. We do not know how the case was decided; but it was twice discussed. Incidentally a fundamental question of corporation law was raised. Suppose that judgment is given against the commonalty, can the goods of the members be taken in execution? On the whole the judges think that they cannot, but are not very sure. They make an admission of great importance to us, namely, that it is the common course in the King’s Bench that if a community be amerced, the amercement shall be levied from all the goods of the members of the community.327 The obvious tendency of this admission they seek to avoid by saying that there is a great difference between the king and anyone else. As we shall hereafter see this admission was unavoidable; the goods of the members of municipal communities were constantly treated as liable to satisfy the king for debts due by the community as a whole. And a mere doubt about the general principle of corporate liability occurring at so late a date as 1429 is remarkable.328 We have indeed observed before now that the non-liability of individual corporators for the debts of the corporation cannot be regarded as of the essence of a corporation. Still unless such non-liability had been common, the modern idea of a corporation would hardly have been formed.
Gradual appearance of the group-person.In all this there is nothing to surprise us. Surprising it would have been had the English lawyers of Bracton’s day obtained a firm hold of the notion of an universitas. In that case they would have been ahead of their Italian contemporaries, who had Code and Digest to set them thinking. It would be a mistake to suppose that what we are wont to consider the true theory of universitates lay so plainly written on the face of the Roman law-books that no one could read them attentively without grasping it. The glossators did not grasp it. Bracton’s master Azo had not grasped it. They were by no means certain about the difference between the universitas and the societas or partnership. The canonists of the thirteenth century were just beginning to proclaim that the universitas is a persona and a persona ficta. Bracton’s contemporary, Pope Innocent IV. (Sinibaldus Fliscus), has been called the father of the modern theory of corporations. We now begin to hear the dogma (of which all English lawyers know a vulgar version) that the universitas can be punished neither in this world nor in the next, for that it has nor soul nor body. And yet, when these steps had been taken, many an elementary question lay open for the civilians and canonists.329
The law of Bracton’s time.This premised, we turn to the law of Henry III.’s day for the, purpose of hearing what it has to say (1) of corporations in general, and (2) of the more important kinds into which corporations may be divided. But at once we discover that of corporations in general little is said, and the law is not dividing corporations into various kinds, thus proceeding from the abstract to the concrete; rather it is slowly coming to the idea of a corporation by dealing with corporations (if so we may call them) of very different kinds.
The communitas.In the first place we can find in our law-books no such terms as corporation, body corporate, body politic, though we may read much of convents, chapters, and communities. The largest term in general use is community, commonalty, or commune, in Latin communitas or communa. It is a large, vague word; in the fourteenth century it is often applied to the English nation, “the community” or “the commune of the land”; it is applied to the Cistercian order;330 it is applied to the University of Cambridge, for “in the vill of Cambridge there are two communes, one of clerks and one of lay men”;331 it can be applied to “the community of merchants who hold the king’s staple of wools”;332 it was applied to the “bachelors” of England who in 1259 had joined together to obtain concessions from the king.333 But we dare not translate it by corporation, for if on the one hand it is describing cities and boroughs which already are, or at least are on their way to become, corporations, it will stand equally well for counties, hundreds and townships, which in the end have failed to acquire a corporate character, and we should be unwilling to suppose that the corporate character once definitely acquired was afterwards lost. One term there was (so it may seem to us) capable of binding together all the groups of men that were personified, namely, the word universitas. But its fate has been curious and instructive. In our modern languages the Roman term that most nearly answered to our corporation stands for the corporations of one small class, the learned corporations that were founded in the twelfth and thirteenth centuries and others that in later days were fashioned after their likeness. These were in the middle ages the corporations by preeminence, and if the universities of Oxford and Cambridge cared to assert that they are the oldest of English corporations something might be said in favour of their claim. For the rest, the word universitas is of common use in legal documents; but only in one context, and one which shows how vague a term it could be. The maker of a charter salutes “All the faithful in Christ,” or “All the sons of Holy Church,” and then requests their attention by Noverit universitas vestra. Now the idea of the Church as the mystical body of Christ has had an important influence on the growth of the law of corporations; it did much towards fashioning for us the anthropomorphic picture of the many members in one body. Still in days when the word universitas was put to its commonest use in describing a world-wide, divinely created organization, it could be of small service to lawyers as an accurate word of art.
Bracton and the universitas.Bracton has a little to say about universitates; it is meagre, it is vague, it is for the more part borrowed from Azo, but none the less it is instructive. In the first place, the cities and boroughs are the only examples of universitates which occur to him. In the second place, following the Institutes,334 he admits that there are res universitatis which are to be contrasted with res singulorum. Thirdly, no definite examples of res universitatis does he give save those that are given by the Institutes, namely, the theatrum and stadium. The inference is obvious that, though he allowed the possibility of an universitas holding land, he knew little of the English city or borough as a landowner; it is not in his manner to give Roman examples when he can give English, while as to our medieval boroughs having stadia et theatra, that is nonsense. Fourthly, he knows that if the English universitas, the city or borough, has but little land and few goods, it has magnificent libertates, franchises, governmental powers and immunities, and these are a common subject of litigation. Fifthly, when he speaks of such litigation he speaks vaguely, and hardly distinguishes between the universitas and the aggregate of singuli. Sixthly, he nowhere makes an act of royal or public power necessary to the existence of an universitas. Lastly, he does not bring any ecclesiastical bodies under this heading; they fall within another form of thought.335
No law as yet for corporations in general.Being unable to find any theory about corporations in general, we are obliged to descend to the various kinds of corporations: to consider, that is, the manner in which the law of the thirteenth century treated those various groups of men which seem to us to have a more or less corporate existence. They are either ecclesiastical or temporal.
Church lands.For many centuries before Bracton’s day there have been in England what we may call “church lands.”336 In some sort or another they have “belonged” to “churches.” But to fashion a satisfactory theory as to the ownership of these lands has been a task beset by practical and intellectual difficulties. The scheme of church-property-law which had prevailed in the Roman world before the German deluge had been a system of centralized and official administration. All the ecclesiastical property within a diocese was under the control and at the disposal of a single officer, the bishop of the civitas. His powers were very large; his subordinates, the diocesan clergy, received the stipends that he allowed them. Such a scheme was adapted only to an age that was far advanced in commerce and orderly government, and we may doubt whether it served even as an ideal in England where the thread of ecclesiastical tradition had been broken. It implies an easy transmission of wealth and messages from place to place; it was thoroughly civic and could not be maintained in a world of villages and manors inhabited by rude barbarians. If there is to be much Christianity in the land, not only must there be village churches, but the village church must be a proprietary centre, an economically self-sufficing institution.
The owned church.Then, as we are beginning to understand, the German has brought with him into the Roman and Christian world the notion that, if he builds a church upon his land, it is his church. If in the days of heathenry he had built a god-house on his land, it would have been his god-house, and he would have made profit out of it.337 This is the origin of ecclesiastical patronage. The right which from the twelfth century onwards appears as a mere right of patronage, an advocatio or advowson, is in origin an ownership of the soil upon which the church stands and an ownership of any lands or goods that have been set apart for the sustenance of a priest who offers sacrifice at the shrine. By slow degrees, which are now being traced, this church-founder and his heirs have to be taught that they cannot do just what they like with their own; and, for example, that they cannot have their church worked for them by ordained slaves. The bishop will not consecrate the altar unless a sufficient provision of worldly goods is secured for the priest. The owner or patron, whichever we call him, must hand over the church and an appurtenant glebe to the priest by way of “loan.” In modern England it is in this context and this context only that we still know, though only in name, the “land-loan” of the old Frankish world: the parson still has a “benefice,” a beneficium. It is long before the founder’s ownership is whittled down to patronage. We may be fairly sure that the famous ceorl who throve to thegn-right by “having” five hides of his own land, “church and kitchen, bell-house and burhgeat,” was conceived to “have” the church in no very different sense from that in which he “had” the bell-house and the kitchen.338 In Domesday Book the village church is apt to appear as an owned thing if also as an owning person: “There are here a church and seven serfs and one mill”: “There are here a chapel and three serfs and one mill”: “There is one chapel which renders eight shillings”:339 “Culling the burgess has a church of St. Mary of 26 acres, Leofstan the priest has a church of St. Augustin of 11 acres, Leoflet a free woman had a church of St. Laurence of 12 acres.”340 Even Bracton must complain that the layman will talk of giving a church when he means that he is giving an advowson.341 Hence the strongly proprietary element that there is in the right of patronage, an element of which the “religious” take full advantage when they engulf the parish churches in the property of their minsters. Modern ecclesiastical reformers who would curtail such rights as the patron still enjoys may fairly say that they are consummating the work of a thousand years; but they should not talk of “restoration.”342
The saint as owner.The early history of church-property in England has never yet been written, and we cannot aspire to write it. We do not, for example, know how the parish church became an owning unit with rights distinct from those of the bishop and his cathedral church on the one hand and from those of the founder or patron on the other. But there is a supernatural element in the story. Great changes take place behind a mystic veil. At least for the purposes of popular thought and speech, God and the saints become the subjects of legal rights, if not of legal duties. “God’s property and the church’s twelve fold”:—such were the first written words of English law. In the old land-books this notion is put before us in many striking phrases. In the oldest of them the newly converted Æthelbert says, “To thee Saint Andrew and to thy church at Rochester where Justus the Bishop presides do I give a portion of my land.”343 The saint is the owner; his church at this place or that is mentioned because it is necessary to show of which of his many estates the gift is to form part. If a man will give land to the chief of the Apostles he should give it to St. Peter and his church at Gloucester, or to St. Peter and his church at Westminster; Justinian himself had been obliged to establish a rule for the interpretation of testaments by which the Saviour or some archangel or martyr was nominated heir and no church or monastery was named.344 The Anglo-Saxon charters and Domesday Book seem to suppose even a physical connexion between the land given to a saint and the particular church with which it is, or is to be, legally connected; geography must yield to law; the acres may be remote from the hallowed spot, nevertheless they “lie in the church.”345 Just as the earl or thegn may have many manors and a piece of land remote from the manorial centre may “lie in” or “be of” one of those manors, so the saint will have many churches each with land belonging to it. Gradually (if we may so speak) the saint retires behind his churches; the church rather than the saint is thought of as the holder of lands and chattels. When it comes to precise legal thinking the saint is an impracticable person, for if we ascribe rightful we may also have to ascribe wrongful possession to him, and from this we shrink, though Domesday Book courageously charges St. Paul with an “invasion” of land that is not his own.346 But how is the church conceived? In the first instance very grossly as a structure of wood and stone. Land belongs to a church, is an appurtenance of a church, just as other land belongs to or is appurtenant to some hall or dwelling-house. But, as the saint retires, the idea of the church is spiritualized; it becomes a person and, we may say, an ideal, juristic person.
The saint’s administrators.All this while there are human beings who are directing the affairs of the saint and the church, receiving, distributing, enjoying the produce of the land. They are the saint’s administrators; they are the rectores of his church. Some of them, notably the bishops, since their powers of administration are very large, may be spoken of as landholders; but still the land which the bishop has as bishop is hardly his own; when he demands it, he demands it not ut ius suum, but ut ius ecclesiae suae.
Illustrations from Domesday Book.Very often in Domesday Book the saint is the landowner; Saint Paul holds land, Saint Constantine holds land, the Count of Mortain holds land of Saint Petroc.347 Leofstan held land under “the glorious king Edmund.”348 Often a particular ecclesia, or an abbatia, holds land. Sometimes the land is described as that of the saint, but the church is said to hold it;349 sometimes this relation is reversed, the land is the land of the church but the saint holds it.350 Often, again, the land is spoken of as that of the ruler of the church; this is frequently the case when a bishop is concerned:—the land is the land of the Bishop of Exeter and the Bishop of Exeter holds it. Still this is no invariable rule; the church of Worcester, an episcopal church, has lands and St. Mary of Worcester holds them;351 and it is not the Bishop of Rome, but the Roman church of St. Peter the Apostle who holds land in Somerset.352 Sometimes the abbey holds land, sometimes the abbot; sometimes again a distinction is drawn between abbey and abbot; the demesne manors are held by the church itself, but the manors given to knights are held of the abbot.353 There are cases (not very many) in which groups of canons are said to hold lands,354 to hold them in common.355
The church as person.We have said that the “church” becomes a person. If, however, we ask how the “church” is to be conceived, we obtain very various answers from canonists, divines and philosophers. Materialism and mysticism are closely allied. At one moment a theorist will maintain that between the death of a parish priest and the induction of his successor the possession of the glebe is being held and retained by the walls of the church;356 at the next moment we hear of the body or the bride of the Redeemer. With the more exalted of such doctrines the lawyer has little concern; but he should notice that the ecclesia particularis which stands on a certain spot is conceived as a part and member of the ecclesia universalis, for this theory leaves a strong mark on that notion of a corporation, an universitas, which the canonist propagates. He is by the law of his being a centralizer, and perhaps will not shrink from the conclusion that, if analysis be carried to its logical limit, the dominium of all church-property is in the pope. At any rate the will of the ecclesia particularis, the episcopal or parochial church, is not to be found wholly within it. It lives a life that is not its own; the life of a “member.”357
The church as universitas and persona ficta.Meanwhile the legists, exploring Code and Digest, were slowly discovering the universitas and endeavouring to mark it off from the partnership and the group of co-proprietors. The canonists seized this new learning and carried it further. The greater churches had about them a certain collegiateness; there was a group composed of bishop and canons, or abbot and monks. Here then was an idea that they wanted. The ecclesia is an universitas, and the universitas is a persona. That they should go on to add (as Innocent IV. did) that it is persona ficta was not unnatural. The organized group was distinct from the “church”; its will might not be the church’s will. To this we must add that the canonist’s law aspired to deal not only with wrong and crime, reparation and punishment, but also with sin and damnation. In his eyes a person who cannot sin and cannot be damned can only be persona ficta. So the universitas is not the organized group, but a feigned substratum for rights. This theory will easily lead to a denial that a corporation can commit either crime or wrong, and Innocent went this length; but both practice and theory rejected his doctrine.358 The relationship between the group and the feigned substratum could never be fully explained. The leading idea, however, was that the group was not, but only represented, and at times (if we may so speak) misrepresented, the corporation. How little of corporateness, of collegiateness, there is in the canonical idea of a corporation is shown by the ease with which this same idea is extended to a case in which there is no plurality, no group. Our curious phrase “corporation sole” only appears late in the day and seems to be exclusively English; but the canonists had come very near to it in their treatment of the cases in which an ecclesia had but one cleric connected with it; the dignitas or the sedes or the like could be personified.359 Here, as in the case of a “corporation aggregate,” there is “fictitious” personality. So the canonist’s corporation is rather a personified institution than an unified group of men.
The temporal courts and the churches.With the evolution of these ideas the English temporal courts of the thirteenth century were not concerned. The canonical theory of the persona ficta was to bear fruit, some good, some bad, in the English common law of later days; but the internal affairs of the ecclesiastical groups could seldom or never be brought before the lay tribunals, and at the time of which we speak municipal growth had hardly reached that stage at which there would be a crying need for some theory or another of a town’s personality. As yet we hear nothing in the secular courts of corporations whether aggregate or sole, and though we hear much of “churches” the lawyers at Westminster have no occasion to analyze the idea that they are employing.
The parish church.From their point of view we may look at the churches, and first at the parish church. When the rector dies or resigns his post there is no breach in the ownership or even in the possession. It is common to find a rector pleading “I found my church seised of that land.” The theory is well stated in a judgment of 1307:—A church is always under age and is to be treated as an infant, and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age.360 Here we have a juristic person, the church, with a natural person as its guardian, and with the patron and the ordinary to check that guardian in his administrative acts, for some things the rector cannot do without the consent of patron and ordinary. Had this principle been held fast, our later law-books would have been relieved of some cumbrous disputations about “the kind of fee” that a parson has.361
The abbatial church.The case of an abbey was less simple in theory, though the monarchical character of abbatial rule deprived some speculative questions of their importance. The ecclesia or abbatia succeeded the saint as the subject of proprietary rights. But, at least in the view of the king’s courts, the abbot’s power was almost that of an absolute owner. Already in Domesday Book we see that it matters little whether one says that the land is held by the church of Ely, the abbey of Ely, or the abbot of Ely. True that when lands are given to an abbey it is rare to find no mention of “the convent” or “the monks” as well as of God, the saint and the abbot. True also that when the abbey lands are alienated the feoffment is usually said to be made either by the abbot and convent, or by the abbot with the consent of the convent. For all this, the temporal courts are apt to treat the abbot as the one and only natural person who has anything to do with the proprietary rights of the abbey. To the complete exclusion of convent or monks he fully represents the abbey before the law; he sues and is sued alone.362 A rule of ecclesiastical law forbidding prelates to dissipate the lands of their churches363 was so far enforced by the temporal courts that they would give to an abbot an action for recovering lands that had been alienated by his predecessor without the consent of the convent. But this action was given to the successor, not to the convent. Had the convent raised its voice, it would have been told that all its members were dead in law; and even the succeeding abbot could not get back the land without a law-suit; the alienation was voidable, not void.364 And so with obligations: the question commonly takes the form “when and how can an abbot bind his successors?” rather than “when and how can an abbot bind his church or the convent?” In short, owing to the legal deadness of the monks, the abbey property seems to be administered by, and represented by (and we may easily pass thence to possessed by and owned by), the series of successive abbots. In the hands of the king’s justices even this series is apt to break up into a set of disconnected links, each of which is a man. Each successive abbot might sue for lands of which the church had been dispossessed during the abbacy of one of his predecessors; but if a claim for compensation in respect of some unlawful act, such as an abstraction of the church’s goods, accrued to one abbot, it died with him and was not competent to his successor. Actio personalis moritur cum persona, and here the person wronged is dead, for he was a natural person and could die. To make the law otherwise, a clause in the statute of 1267 was necessary.365 Thus, though even in the legal notion of an abbey there is an element that we may call “communal,” an element which is recognized by the ordinary forms of conveyances and obligations, and sanctioned by the rule that alienations of land are voidable if made without the consent of the convent, still this element is by no means prominent, and the abbot’s powers of dealing with property and of binding the abbey (that is his successors) by contract are limited much rather by the idea of the church itself as the true subject of rights and duties, than by any principle that would make him but one among a number of corporators.
The episcopal church.The case of a bishop is not essentially unlike that of an abbot. True that the lands of the see are very often, from Domesday Book downwards, spoken of simply as the lands of the bishop; the fact that they constituted a barony made such language the more natural;366 none the less they were the lands of his church.367 And in the bishop’s case it is at least necessary to distinguish the man from the bishop.368 All the abbot’s lands are the abbey lands, but a bishop may hold lands and goods which in no wise belong to his see; he will have “heirs” as well as official “successors” and may make a will; occasionally he has a great private fortune. In recognizing the possibility of one man having, as we should say, two capacities, a natural and a politic or official capacity, the law made an important step; there are signs that it was not easily made;369 but the idea of the church as the true owner of the episcopal lands made this step the easier, for in one of his two capacities the bishop was no owner but merely a rector or custos. Again, there was a communal element to be considered. The lands of the see, if they were the lands of the bishop, were also in some sort the lands of the cathedral convent or chapter, and this, though it might be a group of monks dead to the law, might also be a group of secular canons, each of whom was a fully competent legal person. To a small extent the law recognized the interest of this group; without its consent the bishop could make no alienation of the church’s lands that would not be voidable by his successor. Still the members of the chapter had no action if the bishop without their consent dissipated the wealth of the see, and this shows us that the person wronged by such dissipation was not a community of which the bishop was the head, but rather the church, an ideal person, whose guardian he was. He might do nothing to the disherison of his ward without the advice of his council, his constitutional advisers.
Disintegration of ecclesiastical groups.There is, however, within the ecclesiastical sphere a well marked movement towards individualism; it goes on from century to century. The clerical groups begin to divide their property. As a first stage we may notice the permanent allotment of lands to specific wants of the group; one manor supplies the monks with food, another with clothing, one in some sort belongs to the cellarer, another to the almoner, sacrist, vestiary. Such arrangements, though they seem to have been regarded as solemn and permanent, were matters of internal economy and, at least as regards the outside world, had no legal effect: the abbot still represented all the lands and all the affairs of the abbey before the law. But sometimes, even in a monastic society, the process went further; often when a bishop’s church was monastic, as for example at Canterbury, Durham and Worcester, a partition of lands was made between the bishop and the monks, and even the temporal law took notice of such a partition; the Prior of Canterbury became the legal representative of one section, if we may so speak, of the now divided ecclesia of Canterbury.370 Even in the case of an abbey such partitions were sometimes made, and the Prior of Westminster sued the Abbot.371 When the group was not monastic but secular the process often went much further; prebends were created; the bishop held lands in right of his bishopric, the dean in right of his deanery, the prebendary in right of his prebend.372 Though for ecclesiastical purposes the group might be organic, it as an unit had little to do within the sphere of lay justice, and, if we may use the terms of a later day, the “corporation aggregate” was almost resolved into a mere collection of “corporations sole.”
Communal groups of secular clerks.Still throughout the middle ages there were groups of ecclesiastics which, as we should say, were corporations aggregate and which, being composed of seculars, were not subject to the monarchical rule of an abbot. The number and wealth of such bodies, and therefore their importance in the history of our law, might easily be exaggerated, but still they existed, and took part in litigation; suits, for example, are said to be brought by and against the canons or the dean and canons of a church.373 In these cases we seem to see all the elements of a corporation aggregate. In the first place, there is personality; the lands, the affairs, administered by dean and canons, master and brethren, are the lands, the affairs, of a church or a hospital. In the second place, the administrators for the time being are a legally organized body, a body which perdures while its members come and go.374 In the third place, this body transacts business as a body by means of meetings and votings and resolutions; the motive power is not (as it is in the case of an abbey) the will of a single man. Our lawyers, however, learnt from the ecclesiastical groups fewer valuable lessons than we might have expected. The groups which were compact were despotically ruled, and the groups which were not despotically ruled were not very numerous nor very wealthy and seldom came before the courts as organized bodies.
Internal affairs of clerical groups.As regards the internal economy of the ecclesiastical groups, our common law of the thirteenth century had little to say. Not only was this a matter for ecclesiastical law, but a deep-seated reverence for a seal served to adjourn some difficult questions which otherwise must have come before the king’s courts. A natural person is bound by his seal; he has himself to blame if some one else, at all events some one whom he has trusted, puts his seal to a bad use.375 So with the church. If Brother Walter, the sacrist of St. Edmunds, gets hold of the seal which usually hangs beside the holy bier and therewith seals a bond for forty marks to Benedict the Jew of Norwich, there is nothing for an enraged abbot to do but to depose Brother Walter.376 It would seem that normally the abbot kept the seal and thus could bind the house. In 1321 it was said that many a priory in England had no common seal; the prior’s seal served all purposes.377
A remarkable attempt was made by Edward I. and his barons to protect the house against the abbot, not so much in the interest of the monks, as in the interest of pious founders, who saw their good intentions brought to naught and the fruits of their donations sent across the sea to the profit of the alien. The common seal, said the Statute of Carlisle (1307), was to remain in the custody of the prior and four discreet inmates of the house and be laid up in safety under the privy seal of the abbot. This statute should be famous, for it was one of the very few illustrations that Coke could give of his doctrine that a statute may be void for unreasonableness;378 and certainly it would seem that in 1449 the court took upon itself to call this statute void, partly because it was self-contradictory (for how can one use a seal at all if it is always locked up?) but also “because if the statute were observed every common seal might be defeated by a mere surmise which could not be the subject of a trial.”379 From this we may gather that the statute had little effect.
The power of majorities.The canonists had by this time much to say about the manner in which legal acts can be done by or on behalf of corporations aggregate. They had a theory of duly convened meetings, and a theory of the powers of majorities. The most noticeable point in their doctrine is that the will of the universitas was expressed, not necessarily by the maior pars conventus, but by the maior et sanior pars. Presumably the major was also the saner part, but an opening was given for dissentients to represent to the rulers of the church (for after all an ecclesia particularis was but a member of the ecclesia universalis) that the resolution of the majority was not the will of the church.380 Much of this learning about corporate acts must have been fairly well known to many educated Englishmen, including some of the king’s judges, and must have been frequently discussed in the chapterhouses, for chapters were quarrelsome and the last word about their quarrels could be said by Italian lawyers. But the influence of all this doctrine upon English temporal law was as yet indirect and subtle and we have not the knowledge that would enable us to trace it.
The ecclesiastical and the temporal communities.It is in no wise strange that the English lawyers of this age had not as yet brought the ecclesiastical and the temporal corporations under one heading; so different were they. This we see at once when we have asked the question “What temporal groups of men are there which can have any claim to be corporate?” and have answered it by saying “Chiefly counties, hundreds, townships, manors, cities and boroughs, in a word (since we can coin no better term) land communities. ” The church, the religious order, the hospital, exists for a definite purpose: for the honour of a patron saint, the defence of the Holy Land, the relief of lepers. The ideal person has a permanent ideal will expressed in the rule of St. Benedict or in some foundation charter. But for what purpose do townships and boroughs exist? Where is the permanent will of a city to be found? Again, the group of monks or canons is a voluntary society; of their own free choice and by a definite act men become members of chapters or convents; but, at least normally, the member of a township can hardly be said to have chosen to be a member; it may be that he has inherited a tenement; it may be that he has bought one; but even in the latter case the main thing that he bought was a tenement, not a place in a community. In these respects the chapters and convents stood nearer to our modern joint-stock companies than to the medieval boroughs. The company is a voluntary society and has a definite aim expressed in its memorandum and articles. But the township or the borough has come into being no one knows when, and exists no one knows why.
The boroughs and other land communities.Bracton seems to feel—to feel perhaps rather than to know— that among these communities a line should be drawn, that cities and boroughs display some phenomenon, some degree of organic unity, that is not to be found in the open country, that the civic or burghal community is no mere community but an universitas civiumvel burgensium.381 But at this point we must for a while break off our discussion. The question whether and in what sense these land communities or some of them deserve to be called corporate units can only be approached after we have examined their structure and functions, and to this examination we must devote another chapter. Only at its end and, it is to be feared, after many digressions, can we return to the person who is not a man. That person, if he exists, is implicated in a system of local self-government.
The King and The Crown
Is there a Crown?The legal position of the king has been fully discussed by historians of our constitution, and on the province which they have made their own we do not intend to trespass. Nor do we think that a chapter on the law of persons is the proper place in which to collect all or nearly all that can be said of the king. Still there is a question concerning him to which we are naturally led by what we have recently said about “fictitious” persons:—Is the king merely a natural person, or does the law see beside or behind the natural Henry or Edward some non-natural, ideal person, some “corporation sole”?382
Sixteenth century theories of the king’s two bodies.In the sixteenth century our lawyers will use mystical language of the king. At times they will seem bent on elaborating a creed of royalty which shall take no shame if set beside the Athanasian symbol. The king has a body corporate in a body natural and a body natural in a body corporate. They can dispute as to whether certain attributes which belong to the king belong to him in his natural or in his politic capacity. Some of their grandiose phrases may be due to nothing better than a desire to stand well with the reigning prince; some of their subtle distinctions may be due to that love of mystery which is natural to us all; nevertheless we must allow that there were real difficulties to be solved, and that the personification of the kingly office in the guise of a corporation sole was in the then state of the law an almost necessary expedient for the solution of those difficulties. Also we might show that if, on the one hand, this lawyerly doctrine was apt to flatter the vanity of kings, it was, on the other hand, a not very clumsy expression of those limits which had gradually been set to the king’s lawful power and that it served to harmonize modern with ancient law. But we are now to deal with ancient times, in particular with the thirteenth century. The metaphysical king, the corporation sole, does not yet exist; the difficulties which are met by his creation are only beginning to arise.
Personification of the kingship not necessary.In the first place, let us notice that a great deal can be done without any personification of the kingly office. The mere amount of the business that is performed in the king’s name but without his knowledge does not demand any such feat of jurisprudence as the creation of a new person. The ordinary law of agency is equal to the occasion. To this we may add that the gulf between the king and the greatest of his subjects is by no means so wide as it will afterwards become. A great prelate or a palatine earl will like the king have many high placed officers, stewards, chancellors, treasurers and the like, who will do many acts in his name, judicial acts and governmental acts, of which in all probability he will hear no word.
The king’s rights as intensified private rights.Then again, the rights of the king are conceived as differing from the rights of other men rather in degree than in kind. At the beginning of Edward I.’s reign this is expressed by lawyers in their common saying, “The king is prerogative.” As yet the term prerogative is hardly used except in this adjectival manner. It suggests to us that the king has the rights which are given to others by the ordinary law, but that we are likely to find that each particular right is intensified when it is the king’s; the usual definition of it is exceeded, “for the king is prerogative.” For example, he has the rights of a feudal lord to wardships and marriages, but in his case these rights are augmented. If the whole law were written down, we should not be sent to one great chapter of it to learn the law of the kingship; rather we should see at the end of every proposition of private law or procedural law some note to the effect that this proposition must be modified before it is applied to the king’s case. “Prerogativity” is exceptionality.383
The king and other lords.Such is the general conception; and, turning to particulars, we shall usually see that the king’s rights can be brought under it. He has hardly a power for which an analogy cannot be found elsewhere. If he holds a court of his tenants in chief, his barons will do the like; if he asks an aid from them, they will ask an aid from their knights; if he tallages his demesne land, they can exercise a similar right. It is with difficulty that they are restrained from declaring war. If he prosecutes criminals, this is because his peace has been broken, and other lords are often proceeding against offenders who have done them “shame and damage” by breaking their peace. In pardoning a criminal, the king only waives his rights, and he cannot waive the rights of others; he cannot prevent a private prosecutor from urging an appeal of felony.384
The kingship as property.The kingly power is a mode of dominium; the ownership of a chattel, the lordship, the tenancy, of lands, these also are modes of dominium. We may argue backwards and forwards between the kingly right and the rights of private landholders. This is the more remarkable in the case of inheritance, for, as is well known, the notion that the kingship is in some sort elective is but slowly dying.385 For all this, the king is conceived to hold his lands by a strict hereditary right, and between his lands and the kingship it would be hard to distinguish. This is the way in which King Edward asserts his title to land in Lincolnshire:—“Richard my ancestor was seised thereof in his demesne as of fee, and from the said Richard, because he died without an heir of his body, the right descended to a certain King John as his brother and heir, and from him to King Henry as his son and heir, and from the said Henry to me as his son and heir.”386 Such a declaration may seem strange, for nothing is said of Arthur, and in Edward I.’s day the ordinary law of inheritance would have preferred Arthur to John. But this brings out another point:—We may argue from the whole kingdom to each acre of land. The problem which was opened by the death of Richard was at that time an unsolved question—primogenitary rules were as yet new—Glanvill did not know how it should be answered.387 John obtained the crown. This was a precedent in favour of the uncle against the nephew, and as such it was treated by Bracton in the case of private inheritances. The nephew may have the better right, but if the uncle is the first to take possession, the nephew cannot succeed in an action “because of the king’s case.”388 In Edward I.’s day lawyers know that there is something odd in the king’s pedigree: we must not argue about it.389 Still the descent of the crown was not so unique a phenomenon then as it is now-a-days. No one, it may be, would have proposed to divide England among several co-heiresses, and we cannot say with certainty that a woman could have inherited the crown; but the question whether the county of Chester was partible had lately been treated as open,390 while in Scotland not only was the crown claimed for the Maid of Norway, but Bruce and Hastings urged that the kingdom was divisible and should be divided between them and Balliol.391
The king’s rights can be exercised by him.Even if we find that the king has some unique rights, rights for which analogies will be sought in vain, still they are rights that a natural person can exercise. Thus the royal lawyers are bent on establishing the doctrine that all justiciary powers are derived from the king. In terms made familiar by the canonists, they assert that the king is the “judge ordinary” of the whole realm and that all others who administer justice are “judges delegate.”392 They have difficulty enough in making good this assertion in the teeth of feudal claims; but, when it is made, it does not attribute justiciary powers to a fictitious person, it attributes them to a real Henry or Edward. Bracton is in earnest when he says that, were the king strong enough, he would do all justice in person.393 Far distant is the thought that the king may not sit as the active president of his own court. King Henry sits there and important cases will be adjourned if he be not present.394 Justices have been fined for proceeding in the king’s absence.395 There is something anomalous in the ascription to a king of powers that he may not lawfully exercise in person, something which may suggest that our “king” is rather a figment of the law than a man; but that a man should be able to do by delegate what he may do himself if he pleases—there is nothing strange in that. Then again, the doctrine that the king’s will can only be expressed by formal documents, sealed, or signed and countersigned, does not belong to the twelfth or thirteenth centuries. On the contrary, the king’s will expressed by word of mouth is more potent than any writ.396
The king can do wrong, but no action lies against him.The rule which in later times will be expressed by the phrase “The king can do no wrong” causes no difficulty. That you can neither sue nor prosecute the king is a simple fact, which does not require that we shall invest the king with any non-natural attributes or make him other than the sinful man that he is. The king can do wrong; he can break the law; he is below the law, though he is below no man and below no court of law. It is quite conceivable that he should be below a court of law.397 In the second half of the century some lawyers are already arguing that this is or ought to be the case.398 What is more, a pious legend of Westminster Hall tells how “in ancient times every writ of right droiturel or possessory lay against the king.”399 The lawyer who said this in Edward I.’s day was careful to leave the ancient times indefinite; probably he was referring to the good old days of the Confessor and, like Blackstone after him, saw “our Saxon ancestors” impleading each other by writs of entry.400 But the legend grew, and, as legends will, became more definite. In the middle of the fourteenth century the common belief was that down to the time of Edward I. the king could be sued like a private person, and a judge said that he had seen a writ beginning with Praecipe Henrico Regi Angliae.401 If he had seen anything of the kind, it was some joke, some forgery, or possibly some relic of the Barons’ War. About this matter there should be no doubt at all. Bracton, no mere text writer, but an experienced judge of the highest court, says plainly that writs do not run against the king.402 “Our lord the king cannot be summoned or receive a command from any one”—this comes from a judgment of the king’s court in 1234.403 “Our court is not above us and cannot summon nor compel us against our will”—this comes from a writ tested by Hubert de Burgh in 1223.404 This positive evidence is strong; the negative evidence is overwhelming. If Henry III. had been capable of being sued, he would have passed his life as a defendant. In the opinion of many of his subjects he was for ever breaking the law. Plea rolls from his reign there are plenty, and in the seventeenth century they were jealously scanned by eyes which did not look kindly upon kings. Where are the records of cases in which King Henry issued writs against himself? We cannot but believe that Praecipe Henrico Regi is what Francis Bacon called it, an old fable.405 To this must be added that the king has power to shield those who do unlawful acts in his name, and can withdraw from the ordinary course of justice cases in which he has any concern. If the king disseises A and transfers the land to X, then X when he is sued will say that he cannot answer without the king, and the action will be stayed until the king orders that it shall proceed. So if the king’s bailiff is charged with a disseisin done in the king’s name, the justices will indeed take a verdict about the facts, but they will give no judgment Rege inconsulto.406 Still all this “prerogativity” is compatible with humanity, and when the king appears as a plaintiff or submits to be treated as a defendant the difference between him and a private person is less marked in the thirteenth century than it is in later times. When he is a plaintiff he will often employ one of the ordinary writs. A defendant, instead of using what even in Bracton’s day was becoming the proper formula “I cannot answer without the king,” will sometimes boldly say “I vouch the king to warranty.”407 “In the pleadings and proceedings of the king’s suits,” exclaims Bacon, “what a garland of prerogatives doth the law put upon them!”408 This garland is not woven all at once and some of its flowers were but buds in the days of Henry III. But our main point must be that there is as yet little in the law of procedure to suggest that the king is other than a natural person, nothing to suggest that he has two capacities. He enjoys the same privileges whether the matter under discussion is what we should call “an act of state” or whether it is a private bargain. And, after all, the grandest of his immunities is no anomaly. He cannot be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident.
King’s lands and crown lands.Then again, no line is drawn, at least no marked line, between those proprietary rights which the king has as king and those which he has in his private capacity. The nation, the state, is not personified; there are no lands which belong to the nation or to the state. The king’s lands are the king’s lands; the king’s treasure is the king’s treasure: there is no more to be said. True that a distinction is made between “the ancient demesne of the crown” and lands that have come to the king by modern title. The main import of this distinction is to be found in the strong sentiment—it is rather a sentiment than a rule of law—that the ancient demesne should not be given away, and that, if it be given away, some future king may resume it.409 But even here private law affords or has afforded an analogy. It is only of late years, only since Glanvill wrote, that a tenant in fee simple has been able utterly to disappoint his expectant heirs by alienating his land; his power over land which he himself has purchased has been greater than his power over lands which have descended to him and which constitute the ancient demesne of his family. The king, who asserts a right to revoke the improvident grants of his ancestors, is relying on an antique rule of family law, rather than upon any such doctrine as that kings are trustees for the nation. The idea that a man may hold land or goods in two different capacities is not easily formed.
Slow growth of a law of “capacities.”We may see this even in the ecclesiastical region. Though here the personality of the saint or of the church makes the distinction easier, still in age after age people find much difficulty in marking off office from property, and in separating the lands and goods which a man enjoys or uses because he is the ruler of a church from those which, as we should say, belong to him in his private capacity. On the one hand, it is hard to prevent the ecclesiastical benefice from becoming hereditary. On the other hand, it is not readily admitted that a bishop or a parson can have property which is in no sense the property of his church. This difficulty it is which provides an excuse for that interference by the king with the goods of dead bishops, which historians are too apt to treat as sufficiently explained by mere rapacity. An abuse we are willing to call it, but there is an excuse for it. On the death of the bishop, the king is guardian of the temporalities of the church; the dead bishop’s goods are the goods of the church.410 This idea is well brought out by what is told of St. Hugh of Lincoln. He did not approve the new custom that bishops should make wills. Still he consented to make one lest otherwise his goods should be seized by the king. Evidently the saintly bishop thought that his goods were his church’s goods; he made a will in order to defeat, if possible, the all too logical, if impious, deduction which kings were ready to draw from this pious doctrine.411 King Stephen had to promise that he would not interfere with the testaments of the bishops, and that, on the death of a bishop intestate, his goods should be distributed for the benefit of his soul by the counsel of the church; but then he was also making something very like a renunciation of his right to a profitable guardianship of the temporalities of the vacant see.412 His successors seize the goods of intestate bishops and expect bishops to apply for a licence if they want to make wills. When Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of £11,000, to say nothing of the spoons and salt-cellars. A very just retribution, says the dean of St. Paul’s, and quotes from his Digest “quod quisque iuris in alterum statuerit, uti debet eodem iure,” for this Roger had obtained a papal bull enabling him to seize the goods of any clerk in his diocese who, even though he made a testament, did not before his death distribute his goods with his own hands.413 The pope was just as bad as the king in this matter. In 1246 he proclaimed that the goods of all intestate clerks belonged to him, though in the next year he retired from an indefensible position.414 No doubt the canonists could distinguish well enough between the property of the church and the property of the prelate; still we can see that this is a lawyerly distinction; a saintly bishop, like Hugh of Lincoln, will scout it in the interest of his church, a covetous bishop will make light of it in the interest of himself and his kinsfolk, a needy king will know how and when it can be profitably ignored.
No lay corporations sole other than the crown.If these things be done within the ecclesiastical sphere where dead saints still are active, where the canon law with its Roman traditions prevails, what may we not expect in the temporal sphere? Far easier for us is it to personify a church, which actually holds the body, and is guarded by the soul, of the saint, than to personify a nation, a state. No medieval king is tempted to say “I am the state,” for “ Ego sum status ” would be nonsense. On the other hand, no one will say to him “This land, though it may be called your land, is really the land of the state.” And so the king’s land is the king’s land and there is no more to be said about it. It should be remembered that in our fully developed common law the king, or crown, is the only corporation sole of a lay kind. The temporal law of the thirteenth century will aid us with no analogy if we would distinguish between the king’s private property and his official property. Often enough has office become property, or rather (for this we believe to be nearer the truth) rights which older and vaguer law had regarded as half official, half proprietary, have become definitely proprietary. Earldoms and serjeanties belong to this category; but we cannot distinguish between the lands which the earl has as earl and those which he has as man. On the other hand, those offices which have not fallen into this category do not comprise or carry with them any proprietary rights of any kind. The shrievalty is an office, but the sheriff as sheriff has no lands, no goods.415 What is more, trusteeship, at all events a permanent trusteeship, is as yet unknown to the law and can supply us with no analogy. No form of legal thought that is at our disposal will enable us to separate the lands of the nation from the lands of the king.
Is the kingdom alienable?But at least, it will be urged, the king cannot devise the kingdom by his will. No, but the general law is that a landowner cannot devise his land by his will: only God can make an heir, not man. And, after all, this impotence of the king has not been very clearly demonstrated. If standing in the thirteenth century we ask why on the Conqueror’s death Rufus became king of the English, while Robert became duke of the Normans, it is not plain that there is any better answer forthcoming than that the Conqueror, like other lords who had lands on both sides of the sea, partitioned his estates among his sons. But, as already said, the fact that land cannot be devised by testament is a sufficient reply to any who would draw distinctions between kingdoms and other estates. Moreover in the middle of the thirteenth century it is by no means so clear as a patriotic Englishman might wish it to be that the king of England does not hold his kingdom of the pope at an annual rent by virtue of John’s surrender and Innocent’s regrant.416 And, as we saw above, if the king ought to consult his barons before he grants away any large tract of his kingdom, common opinion has expected that a great baron will consult his men, or at least profess to consult them, before he makes large grants out of his honour.417 As to the king’s treasure, it is the king’s treasure and he may do what he pleases with it, though very likely his successor may find an excuse for disregarding some or all of his bequests. Edward III. in his will, draws a marked distinction between the debts that he owes as a private person and the debts that he owes as a king; his executors are to pay the former, while the latter will fall upon his heir and successor. We shall hardly find such a distinction in earlier times.418
The king can die.As yet no king has succeeded to another without there being an interregnum. In the case that is just happening when we make our survey this interregnum is very short. Edward I. far away in the Holy Land began to reign on the day, not of his father’s death, but of his father’s funeral.419 But there is here no legal fiction, nothing that demands any mysterious phrase about the king’s immortality. Edward I. really reigns, before he is crowned, and Edward II. will really reign so soon as his father has ceased to breathe. There is less excuse here for a fiction than there is in the case of a bishop; also there are fewer materials ready to the hand of the constructive lawyer. The bishop’s throne must be vacant at least for a few days, and meanwhile the eternally infant church has other guardians, a guardian of its temporalities, a guardian of its spiritualities. But looking back a little way to cases in which there has been an interregnum of considerable duration, we see that lawyers have not been prepared to stop the gap with a metaphysical king, the personified kingship. When the king dies, his peace dies, and there is no king’s peace until another king is crowned. The king then who has a peace is a mortal man. The evil consequences of this principle may have been somewhat lessened by a proclamation of the peace of one who, though he is not yet king of England, is by hereditary right lord of England. Still such a shift tells us that the only king known to the law is a natural person.420
The king can be under age. A case has lately occurred which, so we may think, must have put the old theory of the kingship to a severe strain. A child but nine years old was crowned. The coronation of Henry III. was an important event. It was, if we may so speak, a two-edged event. On the one hand, it confirmed the doctrine of pure hereditary right; it applied to the kingship the common land law. On the other hand, it showed that a king capable of ruling was no necessity; all that a king could do might be done by a regent and a council in the name of an infant. How William Marshall became “rector regis et regni” is in this context a question of no great interest. There was a grave national crisis; there was civil war; a foreign enemy was in the land. Those barons who had not rejected John did the obvious thing, chose the obvious man as their leader. It was not a time for constitutional dissertations. What happened during Henry’s minority is of greater significance. In litigation which touches royal rights the ordinary rule of private law is applied. An action for land is brought; the person in possession alleges that the king is his warrantor; the action must remain in suspense until the king is of full age.421 Then, when Henry was of full age, he insisted that all charters granted in his name during his minority required confirmation, even the Great Charter and the Forest Charter. He did this we are told by the advice of Hubert de Burgh.422 To exclaim against his faithlessness, his greed, his imprudence, is far easier than to discover any then admitted principle of law which would condemn him. Suppose that his guardians have improvidently alienated some piece of his demesne land, is he not to have the ordinary right which every infant enjoys on attaining his majority?423 Donations, we might say, are one thing, laws another, and Magna Carta is a code of laws. But where and how could the line be drawn? In form the Great Charter was a charter, and between it and the mere gift of single knight’s fee there was a long and gently graduated series of charters granting “liberties” of various kinds to individuals and to larger or smaller classes of men.424 A claim to revoke what is in fact a body of general laws is one which will set men thinking, and may lead them in the end to some mystical dogma such as that the king is never under age; but no such dogma has as yet been fashioned. The king of the thirteenth century is a natural person and may be “under disability.”
Germs of a doctrine of “capacities.”In course of time we see the beginnings of a doctrine of public or official capacities. Lanfranc hints at it when he suggests that the Conqueror, though he may not arrest the Bishop of Bayeux, may lawfully arrest the Earl of Kent.425 Some progress has been made before the end of the thirteenth century. In a carefully worded judgment our king’s court declares that the Bishop of Durham “has a double status, to wit, a temporal and a spiritual status.” The Archbishop of York has excommunicated the bishop for imprisoning some of his metropolitan’s men. But to imprison men belongs to the bishop’s temporal status. Therefore the archbishop has excommunicated not his suffragan bishop but the king’s tenant in chief and must pay a fine.426 A still more interesting case concerns King Edward himself. He in his father’s life time was holding the vill of Stamford and was exercising in it the franchise known as the return of writs. He granted the vill to the Earl of Warenne. Having become king, he demanded by what warrant the earl claimed the franchise. The earl replied “By your own gift; you gave me all that you had in Stamford.” The king’s counsel then pleads that Edward himself had no title to the franchise, and that, being king, he is bound to resume all rights unlawfully detached from the crown, even though he himself, while as yet no king, was the guilty person. “He is now of another estate than he was then and is quasi another person.” The earl combats this theory—“He is one and the same person that he was when he made the gift.” Judgment is given for the king.427 Thus the idea of dual personality may already prevail when the king relies upon it. To enforce it when it would tell against his interests would be a harder task. And as yet this idea looks very new. If there is to be a personification, something material, something as visible as a church, must be personified.
Personification of the crown.We can see the beginnings, but only the beginnings, of a process which personifies the king’s “crown.” And here it may be remarked that even in our own day this process has never gone so far as to modify the formal language of our law. Of course lawyers and judges and even statutes have now for a long time spoken of the rights of the Crown, have spoken of the Crown as doing this, that, and the other act. Still in the strictest language of the law, the language of pleading, the Crown does nothing; it does not sue, it does not prosecute; the king or queen does it all. A personification of the crown has been required, not so much by any purely “juristic necessities,” as by constitutional doctrines which, though they may now-a-days be as well observed as any laws could be, are none the less no laws. Under the cover of the crown—that “metaphor kept in the Tower,” as Tom Paine called it—our slow revolution is accomplishing itself. In the thirteenth century this golden circlet is beginning to be useful. We first hear talk of it when crimes are committed, not only against the king’s peace, but also against “his crown and dignity.” Then we hear of rights which are inseverably annexed to the crown; they indeed make the crown, for the king’s crown is to do justice and keep the peace.428 This is pleasant doctrine for the king, if it is also a sound doctrine for the state; it enables him to resume “liberties” which have been alienated from the crown and check the growth of seignorial justice. In the fourteenth century it is possible to say that the crown, like a church, is always under age and that no lapse of time will bar the demands of this quasi infant.429 But as yet to distinguish between the crown and the king, between the king and the man, is to teach a treasonable doctrine. In Edward II.’s day that doctrine becomes prominent and charges of holding it are bandied to and fro. The barons who are leagued against one of the king’s favourites, Piers Gaveston, are said to hold that allegiance is due rather to the crown than to the person of the king. A few years afterwards the barons who are leagued against another of the king’s favourites, the younger Despenser, accuse him of having held this very doctrine, and, owing to their success, it becomes for all time, to use Coke’s phrase, “a damnable and damned opinion.” But all this lies in the future.430
Retrospect.We are not contending that the proprietary theory of the kingship—if we may give that name to the doctrine which we have been endeavouring to expound—is the most ancient theory, or that it ever fully expresses all the facts and thoughts and feelings which determine what a king shall be and what a king shall do. Probably there has been a one-sided development of those elements in the ancient ideas which have been found capable of legal treatment, while other elements have been forgotten or extruded from the sphere of law. The Conquest of England, the strong monarchy, the tyranny (if we please to call it so) which was founded by the Norman kings, have favoured those and only those notions which exalt the king and give him a property in his kingdom. Still the phenomenon in question is not purely English and cannot be explained without reference to the history of jurisprudence.431 The elements in the old tribal kingship which survived in the struggle for existence were those which in the then state of legal thought were capable of being accurately expressed and defined. For vague thoughts, for half thoughts, the lawyer can find no place. What, for example, is he to make of a title to the crown which is partly hereditary, partly elective? The elective element cannot be developed, for no one can define who are the electors, no one as yet has rules about the powers of majorities. Therefore the elective element must perish or become a mere form. And so with the king’s lands. Either they belong to him or they belong to some other person or persons. Say for a moment that they belong to the nation, how can such a doctrine be enforced when as yet we have no idea, or but the vaguest idea of official capacities, of trusteeship, of corporations aggregate and corporations sole? We do not wish to prejudge any debatable questions of early English history, but that men had clear ideas about these matters in the tenth century and lost them during the twelfth and thirteenth, those ages of brilliant intellectual progress, is not easily to be believed. The one general result to which we come at the end of this long and variegated chapter is that even in Bracton’s day the number of legal ideas is very small and public law has hardly an idea of its own.
[1 ] Bracton will occasionally use the word status to stand for the whole mass of a person’s rights, even with special reference to his proprietary rights in land, as when (f. 423 b) he discusses the maxim that an infant’s status is not to be changed; but he chiefly uses the word when discussing personal freedom and personal slavery; these are the two great estates. In one passage (f. 40 b, line 23) he seems to use the word status in its later meaning—“Si autem totum non habuerit statum transfert id quod habet”; but the mss show that he wrote not statum, but statim.
[2 ] Leg. Hen. c. 31, 32, 33.
[3 ] Magna Carta (1215), c. 39. See above, p. 183.
[4 ] Note Book, pl. 1213 (ad 1236–37): the Earl of Chester in a civil suit claims the judgment of his peers, but abandons this claim in order to put forward another, namely, that the plea being a “common plea” should not be heard coram Rege. Placit. Abbrev. p. 201 (ad 1281): the Earl of Gloucester, being sued for his franchises in Glamorgan, insists that he ought to have the judgment of his peers, namely, the lords marchers.
[5 ]ad 1233; Mat. Par. iii. 252, 257; vi. 73; Note Book, pl. 857.
[6 ] Bracton, f. 119.
[7 ] In the fourteenth century it was held that a peer in a civil suit was entitled to have at least one knight on the jury. But this can have nothing to do with the iudicium parium, for the knight is neither the peer’s peer nor his judge. See Y. B. 12–13 Edw. III. (ed. Pike), p. 291.
[8 ] Bracton, f. 116 b.
[9 ] Madox, Exch. i. 530–39: the Abbot of Croyland and Thomas de Furnival protest that they are not barons in order to escape from heavy amercements.
[10 ] This from the thirteenth century version of Glanvill contained in ms Camb. Univ. Mm. i. 27, f. 30 b.
[11 ] Bracton, f. 337 b–338.
[12 ] Bracton, f. 444.
[13 ] Here again we must refer to Vinogradoff’s work for the discussion of many details. See also Leadam, in Proceedings of Royal Hist. Soc. vi. 167, and in L. Q. R. ix. 348.
[14 ] Bracton, f. 4 b.
[15 ] Bracton, f. 4 b; Bracton and Azo, p. 49.
[16 ] Bracton, f. 5; Fleta, pp. 1, 239, § 23; Britton, i. 197 and the editor’s note.
[17 ] See the attempts of John of Longueville, Nichols’s Britton, i. 195 note; Vinogradoff, p. 45 note.
[18 ] Mirror (Selden Soc.), pp. 79, 165.
[19 ] For example, in the Hundred Rolls for Oxfordshire (R. H. ii. 688 ff.).
[20 ] The English bondman may have been common, for we often read of bondi or bondes; but this word covers an instructive ambiguity; a Scandinavian word, meaning man and hence peasant, has been misunderstood to imply bondage, i.e. servility. See Vinogradoff, p. 145. Britton writing in French frequently used the word serf, and there is no sufficient reason for denying that this word was used also in English speech. We shall use it as a translation of Bracton’s servus.
[21 ] See above p. 412 as to Bracton’s odd use of the term ascriptitius.
[22 ] We hold this to have been fully proved by Hallam, Middle Ages, ed. 1837, vol. iii. p. 256, and by Vinogradoff, pp. 48–56. But they are perhaps inclined to give too late a date to the appearance of the idea that there are two classes of villeins. Thus in Y. B. 1 Hen. IV. f. 5 (Mich. pl. 11) a nieve brings an appeal for the death of her husband against her lord; it is argued that if the lord be convicted, the appellant will become free; to this it is replied, Not so, if she be regardant to a manor, for in that case she will be forfeited and become the king’s nieve; but otherwise would it be if she were a villein in gross.
[23 ] See e.g. Cart. Glouc. ii. 4: the Bishop of Hereford grants a villein to the Abbey of Gloucester. Cart. Burton, p. 75, grant of a nativus by the Abbot of Burton to the Abbess of Polesworth. Note Book, pl. 1103: a villein sold for 40 shillings; this price will hardly cover a tenement. Register of Abp. Gray (Surtees Soc.), p. 282: the Archbishop of York buys two nativi for 20 pounds. Selby Coucher Book, i. 278: a nativus is sold for four shillings and a talentum. Ninth Rep. Hist. mss Ap. 1, p. 32: a man and his sons are sold to the Chapter of St. Paul’s for 60 shillings, a mare, a cart and 28 sheep.
[24 ] Britton, i. 197.
[25 ] Bracton, f. 197 b, line 3, appeals to common opinion; “dicitur enim vulgariter quod quis potest esse servus unius et liber homo alterius.” He uses the same phrase, f. 25, line 13, f. 196 b, line 36. On f. 198 b, he says, “Cum quis servus sit, non erit servus cuilibet de populo.” Britton, i. 199; Fleta, p. 111 (§ 15).
[26 ] Bracton, f. 6 § 3; f. 155 b § 3. Britton, i. 195 and the Longueville note.
[27 ] Bracton, f. 141: the serf only has an “appeal” in case of high treason. For later law as to appeals by villeins see Y. B. 18 Edw. III. f. 32, Mich. pl. 4 (which appears also as 11 Hen. IV. f. 93, Trin. pl. 52); 1 Hen. IV. f. 5, Mich. pl. 11; Fitz. Abr. Corone, pl. 17; Lit. secs. 189, 190, 194, and Coke’s comment. Littleton’s doctrine is that a villein’s heir has an appeal for the death of his ancestor, that a nieve has an appeal for rape, but that a villein has no appeal for mayhem, though for this crime the lord may be indicted. When a civil action was brought for beating, wounding, imprisonment, etc. there seems to have been some doubt as to how much of the charge the defendant should formally deny before pleading that the plaintiff was his villein; see Y. B. 33–35 Edw. I. p. 296.
[28 ] Select Pleas of the Crown, p. 3: a villein kept in chains because he wished to run away. For the imprisonment of a body of rebellious tenants in the 14th century see Literae Cantuarienses, vol. ii. p. xxxvii.
[29 ] A ms of Bracton in the Phillipps Library, No. 3510, has a marginal note written early in the fourteenth century which states the hereditary rights of the villeins in forcible terms. “Item usque ad tertium gradum inclusive illi de parentela et sanguine villanorum, sive mares fuerint sive feminae, succedent iure hereditario in terras et tenementa villanorum. Et si per iniquum dominum seu ballivum eiciantur, iniuriatur eis in hoc, quia legem suam habent ut liberi homines suam.”
[30 ] Bracton, f. 6 § 3; Bracton and Azo, pp. 67, 71; Vinogradoff, p. 74.
[31 ] Bracton, f. 155 b § 3.
[32 ] See especially Bracton, f. 193 b, line 6.
[33 ] But customs vary very much in this respect. The Abbey of Bec claims the chattels of all villeins who die intestate; R. H. ii. 758 and an unprinted custumal belonging to King’s Coll. Camb. The Abbot of Ramsey makes a similar claim at St. Ives; Cart. Rams. i. 290. At Warboys and Caldicote if the villein has no heir of his body the abbot takes a third of the goods. At Hemingford the villein can make a will “even in the absence of the reeve or serjeant.” Often the best of the villein’s chattels were regarded as annexed to the tenement and could not be bequeathed; see Literae Cantuarienses, ii. 411–12.
[34 ] See in particular Bracton, f. 190 b, line 8: “. . . in possessione servitutis . . . in possessione libertatis.” Bracton quaintly misappropriates the term statu liber for the serf who is de facto free, while the freeman who is de facto a serf is statu servus. Bracton and Azo, 78.
[35 ] Bracton, f. 191.
[36 ] Bracton, f. 191 b, last lines: “in statu dubio semper erit pro libertate iudicandum”; f. 193, “in hoc dubio erit pro libertate iudicandum ita quod in benigniorem partem cadat interpretatio.”
[37 ] Bracton, f. 6 b, 7; Bracton and Azo, p. 77; Y. B. 21–22 Edw. I. p. 449; 33–35 Edw. I. p. 205.
[38 ] Bracton, f. 163. These strict possessory rules were being relaxed before the end of the century. Year and day takes the place of the four days; Britton, i. 199, 201.
[39 ] Bracton, f. 6 b: “ad similitudinem cervorum domesticorum.” Cf. Britton, i. 201; Y. B. 32–33 Edw. I. p. 56.
[40 ] Bracton, f. 24 b, 208 b; Vinogradoff, pp. 70–74.
[41 ] Littleton, sec. 205–7.
[42 ] See Vinogradoff, p. 73. Add to his illustrations, Cart. Glouc. ii. 87: grant of land to G. our “native” for life and to his wife during her viduity, at a rent and in consideration of a gross sum; he is not to marry son or daughter without our leave. Select Pleas in Manorial Courts, i. 172: elaborate agreement between the abbot of Battle and his villeins. Note Book, pl. 784, 1814.
[43 ] See above, p. 428.
[44 ] Hengham Parva, c. 8.
[45 ] Bracton, f. 155 § 2, 155 b § 3.
[46 ] Bracton, f. 204, 204 b.
[47 ] A man’s liability for the doings of his mainpast will deserve fuller discussion in another context.
[48 ] In Bracton’s day the man who purchases and obtains possession of villein land from a villein is protected against the lord’s self-help; Note Book, pl. 1203.
[49 ] Dialogus de Scaccario, ii. c. 14.
[50 ] Bracton, f. 217, line 36. We seem to see here a change unfavourable to the villein.
[51 ] Britton, ii. 159, 168–69.
[52 ] See Broke, Abr. Villenage, pl. 33: in an assize of mort d’ancestor one of the defendants pleaded that he was the villein of X and the action was dismissed. Broke notes that he did not add that he held in villeinage and therefore treats the case as curious. Still this was an action for land.
[53 ] Select Pleas in Manorial Courts, i. 97, 98.
[54 ] On a very early roll of a Norfolk manor, for a sight of which we have to thank Dr. Jessopp, a villein is amerced for having essoined a freeman, “et testatur per curiam quod non potest assoniare liberum hominem.”
[55 ] Thus the Hundred Rolls seem to be founded on the presentments made as well by representatives of townships, who would often be unfree, as by free and lawful jurors of the hundreds; see the rolls for Essex, R. H. i. 136 ff.
[56 ] The original Assize of Arms (1181) contemplates only the arming of free-men; but the writ of 1252 requires that the villani, if rich enough, shall be armed. It is plain also that already in 1225 villani were iurati ad arma. This appears from the writ of that year for the collection of a fifteenth. See these documents in Stubbs, Sel. Charters.
[57 ] Even the ordinance for the Saladin tithe draws no line between free and unfree. The fifteenth of 1225 was levied from villani; so apparently were the fortieth of 1232 and the thirtieth of 1237.
[58 ] Bracton, f. 194, last lines.
[59 ] Thus Britton, i. 197, says that the “native” who is a native not by birth but by his own confession is more properly called a villein.
[60 ] Leg. Henr. c. 77.
[61 ] Glanvill, lib. v. c. 6.
[62 ] See c. 15, C. 32, qu. 4. This was altered by c. 8, X. 1, 18. Such a rule, expressed in the German proverb “das Kind folgt der ärgeren Hand,” is by no means unnatural; see Heusler, Institutionen, i. 188. In France they say “Le mauvais emporte le bon”: Viollet, Histoire du droit civil, p. 319.
[63 ] Bracton, f. 5, 194 b; Bracton and Azo, p. 53; Note Book, pl. 1041, 1839.
[64 ] See Vinogradoff, pp. 59–63, also the note on Leg. Hen. c. 77 in Thorpe’s Ancient Laws and Institutes. The freedom of the bastard appears at least as early as Y. B. 19 Edw. II. f. 651–52. It appears also in Beaumanoir (c. 45, sec. 16) where it is the more curious because the general rule is “Servitude vient de par les mères.”
[65 ] See the Abridgements, tit. Villenage.
[66 ] Co. Lit. 123 a, 136 b, 137 b.
[67 ] Y. B. 30–31 Edw. I. 164–68. Comp. Britton, i. 199; Y. B. 18 Edw. II. 604.
[68 ] Bracton, f. 202, 202 b; Britton, i. 281. Bracton’s own opinion seems this:—Free woman with free tenement marries a bondman; his lord ejects them from her free tenement; they can sue him. (See Bracton’s Note Book, pl. 1837; it is not stated in this case that the disseisor was the villein’s lord.) But apparently Bracton admits that this is not the prevailing opinion, at all events if the lord is in seisin of the husband. Observe the words “secundum quosdam quod ego non approbo.” But at any rate during the marriage the wife can have no action against her husband’s lord save one based on the disturbance of her possession.
[69 ] Bracton, f. 202, 428 b, 430 b; Britton, f. 198–99; Note Book, pl. 702, 1139. As to the whole of this subject, see Vinogradoff, pp. 61–63.
[70 ] Assize Roll, Lincoln, No. 481 (57 Hen. III.), m. 3: “in villa de Bellesby sunt duo feoda, scilicet, feodum de Fauemer et feodum Peverel et . . . omnes illi qui nati sunt in feodo de Fauemer liberi sunt, omnes vero illi qui nati sunt in feodo Peverel villani sunt.”
[71 ] Bracton, f. 5. But as to the ingratitude of one who has become free by knighthood, or by orders, see Britton, i. 208; Fleta, p. 111.
[72 ] P. Q. W. 818–19.
[73 ] Rot. Pat. i. 55. If they make default they and their heirs shall be servi for ever, paying every year four pence per head. A chevage of four pence a head seems to have been common in France; hence the serf is homo quatuor nummorum.
[74 ] Note Book, pl. 466, 591, 1411, 1885, 1887, 1894; Y. B. 30–31 Edw. I. p. 454; Y. B. 32–33 Edw. I. p. 4; Y. B. 19 Edw. II. f. 651.
[75 ] But how could a defendant gain anything by saying untruly that he was personally a villein? In an action for land was it not enough to say, “I hold in villeinage, or I hold at will, and therefore I am not the right person to be sued”; while is it not only in actions for land that we find defendants relying on villeinage of any kind? The answer is given by a case of 1292; Y. B. 20–21 Edw. I. p. 41. If the defendant merely pleads tenure in villeinage, the plaintiff may contradict him and the falsehood of the plea may be established; but if he adds that he is a villein, then the plaintiff can make no reply and fails in his suit. Perhaps it was considered improbable that any one would condemn himself and his posterity to perpetual servitude unless he had good cause for so doing. At any rate there was no reply to this confession of villein status until in 1363 a Statute, 37 Edw. III. c. 17, permitted the plaintiff to contradict it. In 15 Edw. III. Fitz. Abr. Brief, 322, the absurdity of the rule is shown:—“It is hard; for a man may confess himself villein to his father or his cousin, and then next day get a release from him.” “Yes, it is hard,” is the reply, “but it is law.”
[76 ] See above, p. 441.
[77 ] On the face of it this looks like an ancient procedure, which has been preserved in this case in favorem libertatis. The lord ends his count by offering “suit,” to wit, A, B, C, kinsmen of the defendant. In most other cases the production of suit has in the king’s court become a mere formality, but here it is still all important. A jury may be brought in to decide whether the “suitors” are really of kin to the defendant. Cases illustrating this procedure are, Note Book, pl. 1005, 1041, 1167, 1812; Y. B. 32–33 Edw. I. p. 514; Northumberland Assize Rolls (Surtees Soc.), pp. 46, 159, 196.
[78 ] See above, p. 394, and Britton, i. 196. In Y. B. 8 Edw. III. f. 66 (Mich. pl. 31), it is said that the Bishop of Ely held land by the service of being tallaged along with the villeins.
[79 ] The best illustration of this point is a case of 20 Edw. I. reported in the notes to Hale’s Pleas of the Crown, ii. 298. Two justices of assize laid down the rule “quod nulla praescriptio temporis potest liberum sanguinem in servitutem reducere.” The case was then brought before the auditors of complaints, who declared that this maxim “omnino falsum est.” The case was then taken into the King’s Bench, but with what result does not appear. Britton, i. 196, 206, denies that long performance of base services, e.g. payment of merchet, can make a free stock unfree. So does Hengham in Y. B. 33–35 Edw. I. p. 15: “praescriptio temporis non redigit sanguinem liberum in servitutem.” On the other hand, a gloss in the Longueville ms at Cambridge, printed by Vinogradoff, p. 63, says that in the fifth generation villein services will make free blood servile. The Scottish Quoniam Attachiamenta, c. 39 (Acts of Parliament of Scotland, i. 655), makes the fourth generation servile. Then in Fitz. Abr. Villenage, pl. 24, we have an extract from an unprinted Year Book of Edward III., which seems to say that a stock may become servile by holding in villeinage from time immemorial.
[80 ] Bracton, f. 24 b, 194 b. Britton, i. 198.
[81 ] Bracton, f. 194.
[82 ] See above, p. 442.
[83 ] Glanvill, v. 5. This passage is very difficult, but seems to be explained by Bracton, f. 194 b. We may doubt whether Glanvill means to deny that a lord can gratuitously liberate his serf. If however he liberates him in consideration of a sum of money then a difficulty arises; this is met by the intermediation of a third person who purchases the serf nominally with his own, though really with the serf’s money. Bracton says “eligat fidem alicuius qui eum emat quasi propriis denariis suis.” Still villeins are said to buy their own liberty; e.g. Note Book, pl. 31, 343. The books of conveyancing precedents of the thirteenth century, e.g. the Luffield and Carpenter mss at Cambridge (Ee. i. 1; Mm. i. 27), give forms of manumission by way of sale; the former shows how the transaction can be accomplished either by two deeds or by a single deed. But see Vinogradoff, p. 86, who deals somewhat differently with the difficult passage in Glanvill.
[84 ] Glanvill, v. 5.
[85 ] Leg. Henr. c. 78 § 1: “et liberas ei vias et portas conscribat apertas.”
[86 ] Note Book, pl. 1749. Here again Vinogradoff, pp. 86–88, gives a somewhat different explanation.
[87 ] Glanvill, v. 5; Bracton, f. 190 b; Fleta, 111, 235; Britton, i. 200, 209; Stubbs, Hoveden, vol. ii. (Introduction), p. xl.
[88 ] Bracton, f. 190 b, 198 b; Britton, i. 200, 208; Fleta, 111.
[89 ] See the whole of Dist. 54 and X. 1, 18. In 1270 Robert de Montalt at his mother’s request enfranchised by charter his “beloved and faithful clerk” Roger de Malberthorpe, who perhaps was not in holy orders: Assize Roll, Lincoln, No. 494, m. 43 d.
[90 ] Bracton, f. 5,190 b; Britton, i. 200, 208; Fleta, 111. According to Fleta the serf who has been ordained may be degraded by the bishop if he proves a disobedient clerk, and thereupon he relapses into serfdom.
[91 ] Note Book, pl. 1217; Stat. Westm. I. (3 Edw. I.) c. 39.
[92 ] See above, p. 441.
[93 ] As to the liti and aldiones see Brunner, D. R. G. i. 101.
[94 ] A comparison between our medieval serfdom and the slavery of the ancient world might seem to some beside the point on the ground that the ancients were heathen. But a no less startling contrast might be drawn between our medieval serfdom and the law which Englishmen and men of English race evolved for their negro slaves. It was quite untroubled by any idea of “relativity,” and reproduced, though it had hardly copied, the main features of Roman law. See T. R. Cobb, An Inquiry into the Law of Negro Slavery, Philadelphia, 1858.
[95 ] The contemporary law of France knew how to keep the vilain and the serf well apart. Sometimes the former word is used to describe the whole mass of peasants bond and free. “Mais souvent aussi le même mot est employé avec une signification restreinte et s’applique au paysan libre, par opposition au serf, comme la tenure en villenage est opposée à la tenure en mainmorte”: Luchaire, Manuel des institutions, p. 329. A contemporary French critic of Bracton’s book would have accused him of mixing up two classes of men.
[96 ] Bracton, f. 4 b.
[97 ] Kentish Custumal (Statutes, i. 222); Y. B. 30–31 Edw. I. p. 168. But see Note Book, pl. 1419.
[98 ] Maitland, Pleas of the Crown for Gloucestershire, p. xiii.
[99 ] Depositions and Ecclesiastical Proceedings from the Court of Durham (Surtees Soc.), p. 6.
[100 ] Y. B. 1 Edw. II. f. 4; Liber de Antiquis Legibus, p. 249.
[101 ] Bracton, f. 421 b: “Est etiam mors civilis in servo in servitute sub potestate domini constituto.”
[102 ] See e.g. Lyndwood, p. 168.
[103 ] For the parallel and closely similar French law, see Viollet, Histoire du droit civil, p. 283.
[104 ] Æthelr. viii. 25; Cnut, i. 5 § 2: “He gæð of his mæg-lage, þonne he gebýhð tú regol-lage.”
[105 ] Alf. 20.
[106 ] Cnut, i. 5 § 2, Cod. Colbert; Leg. Henr. 23 § 3, 45 § 2, 3. On the other hand, the abbot has to answer for the acts of the obedientiaries of his house, i.e. of the sacrist, cellarer, almoner, vestiary and the like. They have a general power of binding him.
[107 ] Æthelr. v. 5; vi. 3.
[108 ] e.g. D. B. i. 90: “Praeter hanc terram habet Abbas [Glastingberiensis] xx. carucatas quae numquam geldaverunt . . . De terra quae non geldat tenet Alnodus monachus i. hidam liberaliter de Abbate concessu Regis.” But Monachus may be a layman’s surname. So late as 1175 it is necessary to prohibit monks from taking land as firmarii; Johnson, Canons, ii. 62.
[109 ] This appears already in Glanvill, xiii. 5, 6.
[110 ] Select Civil Pleas (Seld. Soc.), i. pl. 208; Note Book, pl. 455, 1057, 1139, 1586, 1594.
[111 ] See cc. 2, 4, 6, X. 3, 35. For proceedings against a proprietarius, see Lit. Cantuarienses, iii. 176–77.
[112 ] Edward I. kept ten of the Westminster monks in prison on the ground that they, if not cognizant of a robbery of the king’s treasury, were guilty of negligence which made the robbery possible. Rishanger, 222, 225, 420; Flores Historiarum, 116; Pike, History of Crime, i. 198.
[113 ] See the writs in Reg. Brev. Orig. 107 b.
[114 ] Interesting discussions will be found in Y. B. 49 Edw. III. f. 25 (Mich. pl. 5); 20 Hen. VI. f. 21 (Hil. pl. 19).
[115 ] Y. B. 3 Hen. VI. f. 23 (Hil. pl. 2). In his character of executor he might even have an action of debt against his prelate. Hence a riddle:—When can a man sue his own executor? When owing money to a monastery, he becomes professed in it and afterwards abbot of it. But ecclesiastical law forbad the monk to become an executor without the leave of his abbot and (in England) the ordinary. See Lyndwood, p. 168.
[116 ] In our law French the term sovereign is technically used in this context: see e.g. Britton, i. 159.
[117 ] See the long statement as to the cruelties practised among the Dominican friars; Flores Historiarum, iii. 161.
[118 ] The great quarrel between the monks of Canterbury and the two archbishops Baldwin and Hubert, of which a long account is given by Dr. Stubbs in the Introduction to the Epistolae Cantuarienses, is a classical example. But here the question, if regarded from the point of view of English temporal law, was this—Whether the archbishop was or was not the “sovereign” of the cathedral monastery.
[119 ] See the writ De apostata capiendo, Reg. Brev. Orig. 71 b. A good story of an escape is told in Literae Cantuarienses, ii. p. xxxviii.
[120 ] Y. B. 3 Hen. VI. f. 23 (Hil. pl. 2).
[121 ] Y. B. 32–33 Edw. I. 356.
[122 ] Langton’s Constitutions, 1222, c. 51, 52 (adopting canons of the Fourth Lateran Council) in Johnson, Canons, ii. 120; Gravamina of 1257, Mat. Par. Chron. Maj. vi. 360–61; Boniface’s Constitutions, 1261, c. 7, Johnson, Canons, ii. 197.
[123 ] See above, p. 262.
[124 ] Bracton’s Note Book, pl. 444, 766; Circumspecte Agatis; Articuli Cleri (1315); Statutes of the Realm, i. 101, 171; Blackstone, Com. iv. 217.
[125 ] c. 29, C. 17, qu. 4; see Lyndwood, p. 329 ad fin.
[126 ] Bracton, f. 442 b, 443 h.
[127 ] Bracton, f. 443; Note Book, pl. 143, 276, 407, 576, 802.
[128 ] Gravamina of 1257, Mat. Par. Chron. Maj. vi. 354–55.
[129 ] Hale’s treatment of this matter in his Pleas of the Crown is full and good, but he says little of times so remote as those with which we are dealing. See Makower, Const. Hist., 399 ff.
[130 ] Grosseteste’s protest, Ann. Burton, 424; Mat. Par. Chron. Maj. vi. 355–56; Ann. Burton, 417; Johnson, Canons, ii. 193; Court Baron (Selden Society), 19; Select Pleas of the Crown, pl. 160.
[131 ] Bracton, f. 123 b. Early examples will be found in Select Pleas of the Crown, e.g. pl. 49 (a subdeacon), 117 (a subdeacon), 123, 140, 160, 189 (an acolyte), 197 and Note Book, e.g. pl. 548 (a prior).
[132 ] Coke, 2nd Inst. 164, rightly observes that the change takes place between Bracton (f. 123 b) and Britton (vol. i. p. 27). He attributes it to Stat. West. I. (1275) cap. 2. But as a matter of fact the eyre rolls of the last years of Henry III. show that the change has already taken place. See, for example, the roll of a Cambridgeshire eyre of 45 Hen. III. (Assize Rolls, No. 82) passim. We know from Matthew Paris, Chron. Maj. iv. 614, that in 1247 some new rule was made about criminous clerks and that the clergy disliked it, but we have not got the text of this decree. Despite the commentaries of Coke and Hale, we may doubt whether the Statute of Westminster made any definite change in the law. The new king sanctions the clerical privilege, but tells the prelates that they must be careful in the matter of purgation, and that otherwise he will be obliged to make some change. Thereupon in 1279 Abp. Peckham made some effort to improve the procedure in the spiritual court; Johnson, Canons, ii. 267.
[133 ] This account is based chiefly on the Assize Roll just mentioned. Sometimes if the verdict is favourable the judgment is Ideo quietus.
[134 ] Y. B. 33–35 Edw. I. p. 57.
[135 ] Hale, P. C. ii. 383. The clergy protested against the forfeiture, saying that it was a second punishment for a single offence; Gravamina of 1257, Mat. Par. vi. 356.
[136 ] Fournier, Les officialités au moyen âge, 262–81. No doubt this procedure was used in the case of minor offences; but we are speaking of felonies.
[137 ] Letters of John of Salisbury, No. 122, ed. Giles, i. 170.
[138 ] c. 9, X. 5, 34. The whole of tit. 34 bears on this matter.
[139 ] Sarum Charters, 35.
[140 ] Johnson, Canons, ii. 81, 91.
[141 ] Hoveden, iii. 250.
[142 ] Fournier, op. cit. 235–56.
[143 ] Thus in the case of the archdeacon accused of poisoning the archbishop, the accuser could not make good the charge “secundum subtilitatem legum et canonum”; see John of Salisbury’s letter cited above.
[144 ] Johnson, Canons, ii. 267; Stat. West. I. c. 2.
[145 ] Constitution of 1351, Johnson, Canons, ii. 413.
[146 ]Berton’s case, Ryley, Plac. Parl. 56; Rolls of Parliament, i. 40; Hale, P. C. ii. 328.
[147 ] Rot. Cl. 22 Hen. III. m. 17 d; compare Bracton, f. 134 b.
[148 ] Rolls of Parl. i. 146. It is adjudged that two persons have committed adultery, though they have purged themselves in court Christian. The lady’s compurgators were women.
[149 ] Herbert of Bosham, Materials for History of Becket, iii. 265.
[150 ] Fitz Stephen, Materials, iii. 45–46.
[151 ] Herbert of Bosham, Materials, iii. 267, 270.
[152 ] c. 6, X. 5, 37.
[153 ] Maitland, The Deacon and the Jewess, L. Q. R., ii. 153, 165.
[154 ] Johnson, Canons, ii. 207–8.
[155 ] Hale, P. C. ii. 328, says, “Nuns had the exemption from temporal jurisdiction, but the privilege of clergy was never allowed them by our law.” But elsewhere, P. C. ii. 371, “Anciently nuns professed were admitted to the privilege of clergy.” He cites a case from 1348, Fitz. Abr. Corone, pl. 461, which speaks of a woman—she is not expressly called a nun—being claimed by and delivered to the ordinary.
[156 ] Select Pleas of the Crown, pl. 185. At a later date the judges would allow “his clergy” to a man who could read, though the ordinary did not claim him; Hale, P. C. ii. 373.
[157 ] This hope is expressed by Dr. Stubbs, Const. Hist. § 722.
[158 ] c. un. in vio. 1. 12; Statute 4 Edw. I. De Bigamis. For an early case of “bigamy” see Y. B. 30–31 Edw. I. p. 530. Fleta, p. 51, speaks as though the rule which excluded bigami from privilege had been revoked by the Council of Lyons. There must be some mistake here.
[159 ] Hale, P. C. ii. 330.
[160 ]Berton’s case, Ryley, Plac. Parl. 56; Rolls of Parl. i. 40; Hale, P. C. ii. 331–32; Bracton, f. 413 b, allows the privilege in this case.
[161 ] Diceto, i. 410.
[162 ] Bracton, f. 401, 401 b, 407, 411.
[163 ] As regards the transgressiones (trespass and misdemeanour are but slowly differentiated from each other) of clerks, the history of this matter may be traced thus:—In 1176 Henry II. concedes that no clerk shall be drawn into the lay court in any criminal cause or for any offence, except offences against forest law; Diceto, i. 410. Bracton, f. 401 b, says that every day clerks are sued in the lay courts both on contracts and for trespasses. In 1237 the clergy claim exemption in all personal actions; Ann. Burton. 254. In 1257 they repeat the protest; Mat. Par. vi. 357. In 1258 Grosseteste repeats it, and about this time Robert de Marisco asserts it in large terms; Ann. Burt. 424, 426. In 1261 it is asserted by the Constitutions of Abp. Boniface; Johnson, Canons, ii. 185. It covers contract and quasi-contract, delict and quasi-delict. In 1263 the pope, who has reasons for not quarrelling with Henry III., will not confirm the constitutions, but implores the king to give way; Bull of Urban IV. Foedera i. 424. The conflict is now nearly over; but even in 1279 a clerk is still, though vainly, protesting that an action for assault and wounding cannot be brought against him in the king’s court; Hale, P. C. ii. 325. Maitland, Canon Law in England, E. H. R. xi. 647; Makower, Const. Hist. 407 ff.
[164 ] Maitland, Henry II. and the Criminous Clerks, E. H. R. vii. 224.
[165 ] Const. Clar. c. 3: “Clerici rettati et accusati de quacunque re, summoniti a iustitia regis venient in curiam ipsius, responsuri ibidem de hoc unde videbitur curiae regis quod ibidem sit respondendum, et in curia ecclesiastica unde videbitur quod ibidem sit respondendum; ita quod iustitia regis mittet in curiam sanctae ecclesiae ad videndum qua ratione res ibi tractabitur; et si clericus convictus vel confessus fuerit, non debet de cetero eum ecclesia tueri.”
[166 ] The constitution was thus understood by Reuter, Geschichte Alexanders des dritten, i. 372–73; Hefele, Conciliengeschichte (ed. 2), v. 625; Makower, Const. Hist. 402. Dr. Stubbs, Const. Hist. i. 501, says that Henry proposed that “clerical criminals should be tried in the ordinary courts of the country.” Henry may at one time have gone as far as this; but we cannot believe that this is the scheme defined by the constitutions.
[167 ] Materials for the History of Becket, ii. 28, iii. 281; iv. 39, 96, 202. No point in the controversy seems better attested by Becket’s own friends and biographers than that he insisted on this argument. This seems fatal to that interpretation of the constitutions which would make Henry propose that criminous clerks shall be treated like criminous laymen. The famous Nemo bis in idipsum may be ultimately traced to some words of the prophet Nahum (i. 9) which in our Bibles appear as “Affliction shall not rise up the second time.” Gratian has much to say of this maxim in D. 3 de poen. For the distinction that was gradually drawn between deposition and degradation, see Hinschius, Kirchenrecht, v. 51.
[168 ] Bracton’s Note Book, pl. 251: “non fuit seisitus in tempore illo nisi tantum in tempore Stephani Regis quod fuit werrinum.”
[169 ] See Pauli, Geschichte von England, iii. 44; Reuter, Geschichte Alexanders des dritten, i. 369–70.
[170 ] The strongest denial that the so-called customs were customs, is that which comes from Fitz Stephen, Materials, iii. 47: “Sed scriptae nunquam prius fuerant, nec omnino fuerant in regno hae consuetudines.”
[171 ] Schmid, Gesetze, p. 357; Stubbs, Select Charters. There can we think be little doubt that in this ordinance iudicium is used in a technical sense for the ordeal, iudicium Dei.
[172 ] Leg. Hen. Prim. 57 § 9: “De illis, qui ad sacros ordines pertinent, et eis, qui sacris ordinibus promoti sunt, coram praelatis suis est agendum de omnibus inculpationibus, maximis et minoribus.”
[173 ] D. B. ii. 7: “Quidam clericus Comitis E[ustachii] . . . iudicatus est esse in misericordia regis et de omni cessu suo et de corpore suo.”
[174 ] Freeman, Norm. Conq. iv. 684.
[175 ] Thus in Leg. Hen. 57 § 9: “Cum clerico qui uxorem habeat et firmam teneat laicorum et rebus extrinsecis seculariter deditus est, seculariter est disceptandum.”
[176 ] Simeon of Durham, i. 170. Freeman, William Rufus, i. 89, tells the story at length.
[177 ] The bishop relies less on the mere fact of his being a bishop than on this coupled with the fact that he has been and is dispossessed. “Spoliatus episcopus ante omnia debet restitui” is the burden of his plea.
[178 ] Will. Malmesb. Gesta Regum, ii. 548–54; Henr. Huntingd. 265; Gesta Stephani, 47; Will. Newb. i. 35; Gervase Cant. i. 104.
[179 ] Second Charter of Stephen; Statutes of the Realm, Charters p. 3; Will. Malmesb. Gesta Regum, ii. 541: “Ecclesiasticarum personarum et omnium clericorum et rerum eorum, iustitiam et potestatem, et distributionem bonorum ecclesiasticorum, in manu episcoporum esse perhibeo et confirmo.”
[180 ] Letters of John of Salisbury (ed. Giles) No. 122. William of Newburgh, i. 80, treats the story of the poisoned chalice as untrue and absurd.
[181 ] Anselm had some difficulty in preventing Henry I. from enforcing by pecuniary fines the canons against married priests. Eadmer, Hist. Nov. 172–76.
[182 ] See Stubbs, Const. Hist. § 87; Schmid, Glossar, s.v. Geistliche; Makower, Const. Hist. 390.
[183 ] Alfred, 21. See Schmid’s note. The Latin version is important: “Si quis presbyter hominem occidat, capiatur, et totum unde sibi mansionem emerat, et exordinet eum episcopus, et tunc ab ecclesia reddatur.” Henry reading this in the twelfth century might well say that he was fulfilling its spirit, if not its letter.
[184 ] Nov. 83; Nov. 123. 21 § 1; Hinschius, Kirchenrecht, iv. 794–97.
[185 ] Summa Causae (Materials, iv. 202): “Episcopi dicebant secundum leges seculi clericos exauctoratos curiae tradendos, et post poenam spiritualem corporaliter puniendos.”
[186 ] Löning, Kirchenrecht, i. 304, ii. 516; Hinschius, op. cit. iv. 849–64; Nissl, Gerichtsstand des Clerus; Brunner, D. R. G. ii. 311–20. The story is elaborate because it must distinguish between (1) bishops, (2) priests and deacons, (3) the inferior clergy.
[187 ] According to William of Newburgh, i. 140, it was said that a hundred murders had been perpetrated by clerks during Henry’s reign before the king took action.
[188 ] The pope seems to have condemned this constitution as a whole; Materials, v. 74. He was not called upon to say how much of it was tolerable.
[189 ] As to this matter of double punishment, Henry’s canonists based his case on two passages of the Pseudo-Isidore which appear as cc. 18, 31, C. 11, qu. 1. These say in effect that in certain cases an offending clerk after being degraded is curiae tradendus. Does this mean that he is to be delivered to the lay court for further punishment? Henry’s party said Yes; Becket’s No. Our question ought to be, not what these words meant for the Pseudo-Isidore, still less what they meant for Arcadius and Honorius, from whom he stole them, but what they meant for the best ecclesiastical lawyers of the middle of the twelfth century. In 1164 five great canonists have lately had or are just having their say, namely, Gratian, Paucapalea, Roland (now Alexander III.), Rufinus and Stephanus Tornacensis. We can hardly bring ourselves to doubt that Gratian (see the dicta on cc. 26. 30. 47, e. qu.) would have agreed with Henry’s contention. And the same must be said of Paucapalea (Summa, ed. Schulte, p. 78) and Roland (Summa, ed. Thaner, p. 25). Then Rufinus distinctly says that the clerk is to be degraded, “et dimittetur post hoc iudici secundum leges publicas puniendus” (Summa, ed. Schulte, p. 274). Stephanus considers the opinion that Becket adopts and rejects it. Some say that the degraded clerk is not to be accused before the secular judge, since thus he will be tried twice for one offence. Others say that there is no occasion for a further accusation, but that he can be punished by the secular judge without a second trial. But the better opinion is, says Stephen, that the secular judge should try him; the Authenticum [= Nov. 123. 21 § 1] supports this doctrine (Summa, ed. Schulte, p. 212). An anonymous author of this period (Summa Rolandi, ed. Thaner, p. 293) has no doubt that the canon law sanctions it. Something may depend on the date of the decretal of Alexander III. which stands as c. 4, X. 2, 1. In later times the canonists admitted that there were various cases in which the degraded clerk was to be delivered to the lay power for further punishment. See the gloss on c. 18, C. 11, qu. 1; also Fournier, Officialités, 67–68. In 1222 Stephen Langton handed over to the lay power a deacon whom he had degraded for turning Jew and the lay power burnt him; see L. Q. R. ii. 153. Innocent III. (c. 7, X. 5, 20) ordained that the forgers of papal letters should be handed over, and further declared (c. 27, X. 5, 40) that this procedure was sanctioned by the doubtful passages in the Decretum. If once it be allowed that there is here no breach of that fundamental maxim which requires that a man be not punished twice for one offence, then there remains no more than a question about the relative gravity of offences:—is, for example, the forgery of a decretal a worse crime than a murder? Lastly, since Becket was willing to add imprisonment for life to degradation, provided that both punishments came from the ecclesiastical court, it is plain that the principle for which he contended was a highly technical principle condemning not two punishments but two judgments. This long note has seemed necessary, for in England it has been too readily assumed by both parties to the controversy that all Becket’s claims were sanctioned by the law of the church. We dare not speak confidently of such a matter but have grave doubts about the truth of this assumption.
[190 ] Will. Newb. i. 163: “Sive autem parceret homicidis illis, sive non, considerabat proclives esse homines ad male sentiendum de eo. Nam si parceret sceleratissimis, tanti mali ausum vel auctoritatem praestitisse videretur. Si vero in eis plecteret, quod absque eius mandato non attentasse putabantur, utrobique nequissimus diceretur. Idcirco parcendum eis duxit.” Another account, Materials, iv. 162, says that Henry knew that he could not make his peace with the church, unless he punished the murderers by death (“et traderet Sathanae in interitum carnis”), and yet was ashamed to punish them, because the crime had been committed for his sake. And again of the knights it is said (p. 163) that they sought the pope when it had become clear that they must fall into the hands either of God or of man.
[191 ] Gesta Henrici, i. 32; Hoveden, ii. 35: “malefactores illos, qui . . . archiepiscopum occiderunt habere non poterat.”
[192 ] He seems to have referred to cc. 39, 47, C. 23, qu. 5; c. 2, C. 15, qu. 6; cc. 19. 20, C. 11, qu.1.
[193 ] Trivet, an. 1176 (Eng. Hist. Soc.), p. 82: “In ecclesia Anglorum damnosa omnibus et omnino damnanda consuetudo invaluit . . . Si Judaeus aut laicorum vilissimus occiditur statim supplicio mortis occisor addicitur. Si quis vero sacerdotem sive clericum minoris aut maioris status occiderit, sola excommunicatione contenta, aut (ut verius loquar) contempta, ecclesia materialis opem gladii non requirit.” This, the archbishop argues, is directly contrary to many canons. He adds: “Nec dicatur quod aliquis bis puniatur propter hoc in idipsum, nec enim iteratum est quod ab uno incipitur et ab altero consummatur.” A neater reply to Becket’s talk of double punishment could not be given.
[194 ] Diceto, i. 410: “Concedo etiam quod interfectores clericorum, qui eos scienter vel praemeditati interfecerint, convicti vel confessi coram iustitiario meo, praesente episcopo vel eius officiali, praeter consuetam laicorum vindictam, suam et suorum de hereditate quae eos contingit perpetuam sustineant exheredationem.” This seems to show that so late as 1176 the ordinary sentence on a manslayer did not always involve disherison.
[195 ]Calvin’s case, 7 Rep. 1.
[196 ] Rolls of Parliament, ii. 139.
[197 ] Rolls of Parliament, ii. 231; Statute 25 Edw. III. de natis ultra mare.
[198 ] Fitz. Abr. Aiell. pl. 8 (5 Edw. II.); Y. B. 6 Edw. III. f. 22 (Pasch. pl. 47); Y. B. 8 Edw. III. f. 51 (Trin. pl. 38); Fitz. Abr. Briefe, pl. 677 (Mich. 13 Edw. III.); compare Y. B. (ed. Pike), Mich. 13 Edw. III. pp. 76–78.
[199 ] So far as we are aware this appears first in Y. B. 32 Hen. VI. f. 23 (Hil. pl. 5). For the extent of the exception in Coke’s day see Co. Lit. 2 b.
[200 ] Lit. sec. 198; Co. Lit. 129 b.
[201 ] Co. Lit. 8 a, 129 a.
[202 ] Bracton, f. 427 b. He mentions as examples the Earl Marshal and M [Ingeram?] de Fiennes.
[203 ] Mackay, Lives of the Bruces in Dict. Nat. Biogr.
[204 ] Annals of Tewkesbury, 111; Mat. Par. Chron. Maj. iii. 524.
[205 ] Note Book, pl. 750. The king gave part of the lands of Ralph of Tankerville to Basset and his heirs “donec eam reddiderit heredibus praedicti Radulfiper voluntatem suam vel per pacem.” There are many other examples.
[206 ] Bracton, f. 298, 415 b, 427 b, 428 b. He is not quite certain what will happen if ever there be peace. His phrase “donec terrae fuerint communes” seems to mean, not so much “when there is peace between England and France,” as “when Normandy, Anjou, etc. are once more under the ruler whom England obeys.”
[207 ] Note Book, pl. 110, 1396.
[208 ] Mat. Par. Chron. Maj. iv. 288.
[209 ] Comment. i. 372.
[210 ] See the apocryphal statute, Praerogativa Regis, c. 14 (Statutes, i. p. 226). Here we seem to see the king’s claim growing. First we have an assertion of his right to the lands of the Normans, then we are told that this extends also to lands of certain persons born beyond the sea, and we have various readings of the clause which defines this class of persons. One version says, “those whose ancestors were in the faith of the King of France in the reign of King John.” Another, “those who were not in the king’s faith.” In this context “foreigner” and “subject of the King of France” are for practical purposes synonymous terms. In France also the droit d’aubaine but slowly attains its full stature; Viollet, Histoire du droit civil, p. 365.
[211 ] Bracton, f. 427 b.
[212 ] Rolls of Parliament, i. 44.
[213 ] Rolls of Parliament, i. 135: “Dominus Rex ipsum Elyam Anglicum purum tenet.” Coke, Co. Lit. 129 a, cites these letters as though they effected but a limited denization. “The king may make a particular denization, quod in quibusdam curiis suis Angliae audiatur.” For quibusdam read quibuscumque. No one will now-a-days be misled by Coke’s derivation of denizen from “ donaisoni.e.donatio. ” The word originally means one who is within, de intus, deinz, dans, as opposed to one who is an outsider.
[214 ] Charter of 1215, c. 13, 41.
[215 ] Munimenta Gildhallae, vol. i. pt. ii. pp. 205–8.
[216 ] The story is told at length by Schanz, Englische Handelspolitik, i. 379–433.
[217 ] Plac. Abbrev. p. 201.
[218 ] Carta Mercatoria, c. 3; Liber Rubeus, iii. 1063; Stat. 27 Edw. III. stat. 2. c. 8; 28 Edw. III. c. 13.
[219 ] Y. B. 32 Hen. VI. f. 23 (Hil. pl. 5).
[220 ] Indeed they had lately obtained two statutes declaring that alien merchants must dwell with English hosts and not elsewhere; 5 Hen. IV. c. 9; 4 Hen. V. c. 5.
[221 ] See above, p. 485.
[222 ] Y. B. 13 Edw. III. f. 9 (Pasch. pl. 5). This is the celebrated case of the carrier who “broke bulk.”
[223 ] Mat. Par. iv. 8; v. 245. See Du Cange, s.v. Caorcini. The name has been derived from Cahors in France, from Caorsa in Piedmont, from a Florentine family of Corsini. Paris speaks of “Caursini praecipue Senonenses.” Probably by Senonenses he means men of Siena, not of Sens. It seems fairly plain that already the origin of the name was unknown, and that at least in England Caursin was equivalent to foreign usurer. Had the word borne an obvious meaning, Paris would hardly have dared to perpetrate so bad a joke as (iii. 331) “quasi causantes, vel capientes, et ursini.”
[224 ] Stubbs, Const. Hist. § 195.
[225 ] Select Pleas in Manorial Courts (Seld. Soc.), i. 133.
[226 ] Three volumes of Publications of the Anglo-Jewish Historical Exhibition issuing from the office of the Jewish Chronicle (1888) contain valuable essays, documents, bibliographies, etc. We shall make our references chiefly to these. Prynne’s Demurrer, Tovey’s Anglia Judaica, Madox’s chapter on the exchequer of the Jews, and the plea roll printed in Cole’s Documents Illustrative of English History are among the most important sources of information. See also Jacobs, The Jews of Angevin England.
[227 ] Liebermann, Zeitschrift für Geschichtswissenschaft, i. 182.
[228 ] Leges Edw. Conf. c. 25.
[229 ] Bracton, f. 386 b.
[230 ] There is a good deal of evidence which tends to show that in the first half of the twelfth century the Jew’s legal position was not so bad as it afterwards became. The doctrine, not without supporters in England, which teaches that the disabilities of the Jew were due, not to the mere fact that he was a Jew, but to the fact, real or presumed, that he was a usurer and therefore living in mortal sin, seems to us groundless. Our law did not regard usury as any offence in a Jew; on the contrary, it enforced his usurious contracts for him.
[231 ] Gross, Publications, i. 195.
[232 ] Hoveden, iii. 266.
[233 ] Gross, Publications, i. 174.
[234 ] The earliest extant roll was printed in Cole’s Documents; it is that for 3–4 Henry III. A list of the other rolls is given in Publications, iii. p. xiv. Occasionally cases in which Jews are concerned come onto the ordinary plea rolls and some are printed in the Placitorum Abbreviatio and in Bracton’s Note Book. References to these are given in Publications, iii. 4, 24. Cases of small debts were heard by the constables of the royal castles; the court of the University of Oxford claimed pleas between Jew and scholar, and in London the civic court held plea touching land between Jew and Gentile; but on the whole the competence of the exchequer seems to have been exclusive.
[235 ] Edict of 1271 forbidding them to hold land, Foed. i. 489; prohibition of usury, Statutes of the Realm, i. 221. See also the ordinance printed by Gross in Publications, i. 219.
[236 ] Gross, Publications, i. 192, 225.
[237 ] Rot. Cart. Joh. p. 93. The charter of Henry II. seems to be lost. For a charter granted by Richard, see Foedera, i. 51.
[238 ] In 1255 Henry III. mortgaged his Jewry to his brother Richard: Tovey, p. 135; Mat. Par. Chron. Maj. v. 488. Afterwards Henry assigned it to his son Edward, who assigned it for two years to two Caursin merchants: Tovey, pp. 157–59.
[239 ] Tovey, p. 185 (54 Hen. III.). In France the Jew seems to have been distinctly called servus; Viollet, Histoire du droit civil, p. 356; Luchaire, Manuel des institutions, p. 582.
[240 ] Gross, Publications, i. 207.
[241 ] Bracton, f. 13. In feoffments made by certain convents it is common to find a stipulation that the land is not to be sold or gaged to Jews.
[242 ] Gross, Publications, i. 190.
[243 ] Gesta Abbatum, i. 401; Liber de Antiquis Legibus, 234.
[244 ] Foed. i. 489.
[245 ] A collection of Shetaroth or “stars” has been published by M. D. Davis: Publications, vol. ii. As to the use of seals see p. 285. Tovey, p. 183, gives an engraving of a seal appended to a charter of feoffment.
[246 ] See the volume of Shetaroth, pp. 4, 109, 136, 143, 178, 298, 336.
[247 ] Henry III. permits the “masters of the law” to pronounce “summam excommunicationem” against those who will not pay their promised contributions to the London cemetery; Tovey, p. 127; Jacobs, Publications, i. 46.
[248 ] In 1257 Henry III. deposed “bishop” Elyas and declared that for the future the Jews might elect their own sacerdotes: Madox, Exch. i. 261.
[249 ] Y. B. 32–33 Edw. I. p. 355: “ley de Jwerye.”
[250 ] In our chapter on Ownership and Possession we shall trace the preservation of the pedes finium to this point. See vol. ii. p. 97.
[251 ] Madox, Exchequer, i. 247 from a roll of 3–4 Edw. I.; Statutes of the Realm, i. 221.
[252 ] Stat. West. II. 13 Edw. I. c. 18.
[253 ] Brunner, D. R. G. i. 173.
[254 ] Bracton, f. 125 b; Select Pleas of the Crown, pl. 47; Y. B. 20–21 Edw. I. p. 237.
[255 ] Bracton, f. 127 b. The passage “Facta autem possunt esse plura . . . aliquantulum cum humana” is a marginal gloss. See Note Book, pl. 82, 85, 1263, 1267; Co. Lit. 128 b.
[256 ] Bracton, f. 128 b. The printed book has Hertford instead of Hereford. The citation from the Digest should be, Dig. ad legem Corneliam de Sicariis et Veneficis (48. 8) 3 § 6, “Transfugas licet ubicunque inventi fuerint quasi hostes interficere.” As to killing an outlaw, see Britton, i. 51. So late as 1328 it was argued that a plea of the dead man’s outlawry was a sufficient answer to an indictment for slaying him; 2 Lib. Ass. pl. 3, f. 3; Y. B. 2 Edw. III. f. 6 (Hil. pl. 17); and it would even seem that the same assertion was made in 1353; 27 Lib. Ass. p. 41, f. 137.
[257 ] Bracton, f. 128 b.
[258 ] Bracton, f. 125, 128 b.
[259 ] Bracton, f. 132 b.
[260 ] Bracton, f. 30 b, citing Dig. de donationibus (39. 5) 15: “Post contractum capitale crimen donationes factae non valent ex constitutione divorum Severi et Antonini, si condemnatio secuta sit.” See also Fleta, p. 43.
[261 ] Bracton, f. 130: “cum sit progenitus talis ex testiculo et sanguine felonis.” Fleta, p. 43.
[262 ] Æthelr. viii. 42. The excommunicate is “God’s outlaw.”
[263 ] Schmid, Gesetze, p. 357; Leg. Edw. Conf. 2 § 9.
[264 ] Leg. Edw. Conf. 6.
[265 ] Bracton, f. 426 b, 427; Reg. Brev. Orig. f. 65.
[266 ] Bracton, f. 426 b: “Excommunicato enim interdicitur omnis actus legitimus.” Note Book, pl. 552; Britton, i. 322; Lit. sec. 201.
[267 ] Gravamina of 1257, Mat. Par. Chron. Maj. vi. 355; Constitutions of 1261, Johnson, Canons, ii. 192.
[268 ] Johnson, Canons, ii. 258; Rolls of Parliament, i. 224.
[269 ] Rolls of Parliament, i. 102. In 1194 Archbishop Geoffrey of York was in trouble for having contemned the king by excommunicating one of his ministers; Rolls of the King’s Court (Pipe Roll Soc.) vol. i. p. xvii.
[270 ] Note Book, pl. 670. See Ann. Burton. 255, 413; Mat. Par. Chron. Maj. vi. 354; Articuli Cleri, c. 7 (Statutes i. 172).
[271 ] Bracton, f. 408, 426 b, 427; Co. Lit. 134 a.
[272 ] Bracton, f. 427: “Nunquam capietur aliquis ad mandatum iudicum delegatorum vel archidiaconorum vel alterius iudicis inferioris, quia rex in episcopis coertionem habet propter baroniam.”
[273 ] Bracton, f. 426 b; Reg. Brev. Orig. f. 68.
[274 ] Bracton, f. 426 b; Lit. sec. 201.
[275 ] Bracton, f. 426 b; “funestam enim vocem interdici oportet.”
[276 ] The Court Baron (Seld. Soc.), p. 134.
[277 ] Bracton, f. 12, 421; Select Civil Pleas, pl. 157; Note Book, pl. 807, 1648. For parallel and similar French law, see Viollet, Histoire du droit civil, p. 375.
[278 ] Blackstone, Comm. i. 302.
[279 ] Memoranda de Parliamento, 33 Edw. I. (Rolls Ser.), p. 228.
[280 ] Maitland, Praerogativa Regis, E. H. R. vi. 369.
[281 ] Praerogativa Regis, c. 11, 12 (Statutes, i. 226).
[282 ] See above, p. 340.
[283 ] Bracton, f. 5: “Et differunt feminae a masculis in multis, quia earum deterior est conditio quam masculorum.” This comes from Azo, who gives many examples, while Bracton gives none.
[284 ] Bracton, f. 125 b; Britton, i. 50. This doctrine is connected with the rule that a woman cannot be in frankpledge, and this probably implies or has implied that every woman is the mainpast of some man.
[285 ] Note Book, pl. 342, 1361, 1507.
[286 ] Already in D. B. i. 238 b we read of pleas “coram regina Mathilde.”
[287 ] For several years under Henry III. Ela, countess of Salisbury, was sheriff of Wiltshire; see list of sheriffs in 31st Rep. of Deputy-Keeper. But in this case there was a claim to an hereditary shrievalty; Note Book, pl. 1235. The wife of Ranulf Glanvill, sheriff of Yorkshire, is called Berta Vicecomitissa in a charter: Round, Geoffrey de Mandeville, 385.
[288 ] Hargrave’s note to Co. Lit. 29 a.
[289 ] Stubbs, Const. Hist. § 751. Rolls of Parliament, iv. 270 (ad 1425): the Earl of Norfolk had issue Margaret his heir, “to whom no place in Parlement myght apperteyne, by cause she was a woman.”
[290 ]Chorltonv.Lings, L. R. 4 C. P. 374; Beresford-Hopev.Sandhurst, 23 Q. B. D. 79.
[291 ] Rot. Hund. ii. 62: “Domina J. le E. tenet W. . . . et facit sectam ad comitatum et hundredum.” One example among many.
[292 ] The Provisions of 1259, c. 10 (Stat. i. 9), say that the prelates, barons, earls, “nec [al. vel] aliqui religiosi [al. ins. viri] seu mulieres” need not attend the turn unless specially summoned. The reading of the Close differs slightly from that of the Patent Roll. The Statute of Marlborough, c. 10 (Stat. i. 22), repeats this with a small variation; the persons who need not attend are the prelates, earls, barons, “nec aliqui viri religiosi seu mulieres.” The question has been raised whether in this last passage mulieres is governed by religiosi. In any case we should have answered this in the negative, but a comparison of the various texts seems to make this plain; in one version of the Provisions there is no viri. The term religiosi was often used as a substantive. The whole section has the air of dealing with a modern abuse, for the turn is to be held as in the time of the king’s ancestors. The reference to a special summons means this, that the persons exempted from doing suit to the turn may none the less have to go to it for the purpose of defending actions that are pending in the hundred court, or of answering the accusations which the presenting jurors bring against them.
[293 ] Bracton, f. 69; Note Book, pl. 198.
[294 ] Cart. Rievaulx, p. 62: five men and six women, including Ranulf Glanvill and his wife, witness a widow’s gift.
[295 ] Britton, i. 207: “de sicum saunc de homme ne peut, ne deit, estre tryé par femmes”; Fleta, 111–12; Fitz. Abr. Villenage, pl. 37 (13 Edw. I.); Northumberland As-size Rolls (Surtees Soc.), p. 275.
[296 ] Rolls of Parliament, i. 146–47.
[297 ] Note Book, pl. 7: “Lex de masculis si femina defendat.”
[298 ] Glanvill, lib. xiv. c. 1, 3. 6; Select Pleas of the Crown, i. pl. 32; Charter of 1215, c. 54; Bracton, f. 148. It is often said that the woman must allege that her husband was slain “within her arms.” This seems to be only a picturesque “common form.”
[299 ] Glanv. xiv. 3.
[300 ] In the version of Glanvill’s treatise given by ms Camb. Univ. Mm. i. 27, f. 31 b, it is remarked that women can never essoin themselves as being on the king’s service, “quia non possunt nec debent nec solent esse in servitio domini Regis in exercitu nec in aliis servitiis regalibus.”
[301 ] A repeated perusal of Dr. Gierke’s great book, Das deutsche Genossenschaftsrecht, Berlin, 1868–81, has occasioned many changes in this section, which in the first edition bore the title Fictitious Persons. See also Gierke, Deutsches Privatrecht, vol. i.
[302 ] Interpretation Act 1889 (52 & 53 Vic. c. 63) sec. 2. 19.
[303 ] Dig. 3. 4, 7.
[304 ] In the first half of this century our parliament tried many experiments of this kind. See for example the Act for the Registration of Joint-Stock Companies, 7 & 8 Vic. c. 110, sec. 25, 66.
[305 ] We neglect for a while that unhappy freak of English law the corporation sole.
[306 ] Such as the German Rechtssubject, Rechtssubjectivität.
[307 ] For some anthropomorphic vagaries of the middle ages, see Gierke, D. G. R. iii. 549.
[308 ] Gierke, D. G. R. iii. 132.
[309 ] See the Year Books of Edward IV. in general, but especially the great case Abbot of St. Benet’s (Hulme) v. Mayor and Commonalty of Norwich, four times reported, Y. B. 21 Edw. IV. f. 7, 12, 27, 67.
[310 ] Y. B. 20 Edw. IV. f. 2 (Pasch. pl. 7): an unincorporated gild or fraternity. 12 Hen. VII. f. 27 (Trin. pl. 7): “feffement fuit fait al oeps de paroissiens que n’est nule corporacion.”
[311 ] Y. B. 14 Hen. VIII. f. 3 (Mich. pl. 2); dean and chapter, mayor and commonalty are incorporated by the king; the mendicant friars by the pope; abbot and convent by both king and pope.
[312 ] Y. B. 4 Hen. VII. f. 6 (Pasch. pl. 2); 4 Hen. VII. f. 17 (Mich. pl. 7); 7 Hen. VII. f. 9 (Hil. pl. 2); 7 Hen. VII. f. 16 (Trin. pl. 3).
[313 ] Lib. Ass. ann. 22, f. 100, pl. 67.
[314 ]Maundv.Monmouthshire Canal Company, 4 Manning and Granger’s Reports, 452.
[315 ]Abp. of Yorkv.Mayor etc. of Hull, Y. B. 45 Edw. III. f. 2 (Hil. pl. 5); Y. B. 8 Hen. VI. f. 1 (Mich. pl. 2); Y. B. 18 Hen. VI. f. 11 (Trin. pl. 1); Y. B. 32 Hen. VI. f. 8 (Mich. pl. 13).
[316 ] Y. B. 21 Edw. IV. f. 13 (Mich. pl. 4): “le corporacion de eux n’est que un nosme, que ne poit my estre vieu, et n’est my substance, e a ceo nosme ou corps est impossible de faire un tort.”
[317 ] Y. B. 32 Hen. VI. f. 9 (Mich. pl. 13): “ils sont per cest nosme un person corporate”; Y. B. 21 Edw. IV. f. 32 (Pasch. pl. 28) per Catesby.
[318 ] Y. B. 18 Hen. VI. f. 16 (Trin. pl. 4); Y. B. 21 Edw. IV. f. 28 (Pasch. pl. 22). Compare what is said of the Canons of Southwell in Sutton’s Hospital Case, 10 Coke’s Reports, 30 b.
[319 ] Y. B. 21 Edw. IV. f. 31 (Pasch. pl. 28), f. 63 (Mich. pl. 33).
[320 ] Y. B. 2 Hen. VI. f. 9 (Pasch. pl. 6) per Rolf.
[321 ] Y. B. 21 Edw. IV. f. 7, 12, 27, 67.
[322 ] For the facts of this interesting case, see Green, Town Life, ii. 391.
[323 ] Y. B. 21 Edw. IV. f. 69.
[324 ] See Grant on Corporations, p. 110, where it is said that “if the master of a college devise lands to the college, they cannot take, because at the moment of his death they are an incomplete body.” But in 1333 an abbot was successfully sued upon a bond given by prior and convent during a vacancy: Y. B. 7 Edw. III. f. 35 (Trin. pl. 35).
[325 ] Y. B. 21 Edw. IV. f. 15, f. 68, per Vivisour.
[326 ] Y. B. 8 Hen. VI. f. 1 (Mich. pl. 2); f. 14 (Mich. pl. 34).
[327 ] The words are “sera levie de touts biens etc.”; it is clear from the context that this means “shall be levied from all the goods of the members.”
[328 ] In 1437 it is said that if a man recovers debt or damages against a commonalty he shall only have execution against the goods that they have in common; Fitz. Abr. Execution, pl. 128, citing an unprinted Y. B. of Mich. 16 Hen. VI.
[329 ] See Gierke, D. G. R. especially vol. iii. pp. 202–6, 227–85. Innocent says, “cum collegium in causa universitatis fingatur una persona.” Johannes Andreae says, “universitas non est capax poenae capitalis, corporalis, spiritualis . . . cum corpus animatum non habeat ad hoc aptum.” The amusing question was discussed whether a corporation could be a godmother.
[330 ] Rot. Parl. i. 420.
[331 ] Rot. Parl. ii. 47.
[332 ] Rot. Parl. ii. 191.
[333 ] Ann. Burton, 471: “communitas bacheleriae Angliae.”
[334 ] Inst. 2. 1. 6: “Universitatis sunt, non singulorum, veluti quae in civitatibus sunt, ut theatra, stadia et similia et si qua alia sunt communia civitatium.”
[335 ] Bracton, f. 8: “Universitatis vero sunt, non singulorum, quae sunt in civitatibus, ut theatrum, stadia et huiusmodi et si qua sunt in civitatibus communia.” Ibid. f. 180 b: “Item videre debent [iuratores in assisa novae disseisinae] utrum tenementum fuerit sacrum et deo dedicatum, vel quasi sacrum, sicut publicum, vel universitatis ut stadium, theatrum, muri et portae civitatum” (the muri and portae are from Inst. 2. 1. 10). Ibid. f. 207 b: “Item tenementorum quoddam nec sacrum, nec sanctum, sed publicum alicuius, scilicet universitatis vel communionis vel omnium et non alicuius hominis privati vel singularis, sicut sunt theatra et stadia vel loca publica, sive sunt in civitatibus vel extra.” Ibid. f. 228 b: “Item [servitus poterit esse] personalis tantum . . . item localis et non certis personis sicut alicuius universitatis, burgensium et civium, et omnes conqueri possunt et unus sub nomine universitatis” (this concerning “servitudes,” in particular common of pasture). Ibid. f. 56 b: “Item esto quod dominus rex (here we come to something practical), duobus concesserit aliquam libertatem, ut si alicui universitati, sicut civibus vel burgensibus vel aliquibus aliis quod mercatum habeant vel feriam in villa sua, civitate, vel burgo . . . si postmodum concedat consimilem libertatem aliquibus in regno suo . . . secundum quod praedictum est videndum erit qui illorum praeferri debeant in tali libertate.” Ibid. f. 102: a real action may be brought “nomine alicuius universitatis sicut in rem communem.” Ibid. f. 171 b, if the king errs the “universitas regni et baronagium” may perhaps correct his errors “in curia domini Regis.” The passage on f. 8 in which Bracton draws a distinction between two kinds of res universitatis is horribly mangled in the printed text (for usualia read alia). See Bracton and Azo, pp. 87, 90, 95.
[336 ] As to the whole of this matter, see Stutz, Geschichte des kirchlichen Benefizialwesens, Berlin, 1895, and the review by Hinschius of this important book in Zeitschrift d. Sav.-Stift., Germ. Abt. xvii. 135. Also see Dr. Stutz’s brilliant lecture Die Eigenkirche, Berlin, 1895.
[337 ] Stutz, Benefizialwesen, i. 89. Some information about this matter comes from Iceland.
[338 ] Schmid, Gesetze, p. 388.
[339 ] D. B. i. 34 b, 35.
[340 ] D. B. ii. 290 b.
[341 ] Bracton, f. 53.
[342 ] It is not contended that as regards every parish church this is the history of its advowson. The Eigenkirche (the owned church) begins to affect the whole system of law, and the bishop’s power over churches that perhaps had never been owned now begins to look proprietary; they are “his” churches. So too kings assert a patronage over ancient cathedrals, and the emperor may even wish to treat the church of Rome as “his” church.
[343 ] Kemble, Cod. Dipl. No. 1; Stubbs and Haddan, iii. 52.
[344 ] Cod. 1. 2 (de SS. Ecclesiis), 26. The form came down from the pagan classical law; “Deos heredes instituere non possumus praeter eos quos senatus-consulto constitutionibusve principum instituere concessum est, sicuti Iovem Tarpeium” etc. Ulp. Reg. xxii. § 6.
[345 ] Gierke, ii. pp. 542–45. See e.g. Kemble, Cod. Dipl. No. 847: “ic wille ðæt ðæt land æt Merseham . . . ligce into Cristes circean on Cantwarabyrig.” D. B. i. 91 b: “in aecclesia Carentone iacet una hida et dimidia . . . in aecclesia de Curi est dimidia hida.” Ibid. 210 b: “Haec terra fuit in aecclesia S. Benedicti.”
[346 ] D. B. ii. 13: “Aliam Nessetocham tenuit Turstinus Ruffus . . . modo Sanctus Paulus invasit.” We might compare this to those phrases current at Oxford and Cambridge which tell how Magdalene has won a cricket match and the like; but there is less of conscious abbreviation in the one case than in the other.
[347 ] D. B. i. 121.
[348 ] D. B. ii. 416 b.
[349 ] D. B. i. 104: “Terra S. Stefani de Cadomo: Ecclesia Cadomonensis tenet de Rege Northam.”
[350 ] D. B. i. 165: “Terra aecclesiae de Bade: S. Petrus de Bada tenuit Alvestone.”
[351 ] D. B. i. 164 b.
[352 ] D. B. i. 91.
[353 ] D. B. i. 103 b: “Terra aecclesiae de Tavestoch . . . Ipsa aecclesia tenet Middeltone . . . Goisfridus tenet de abbate Lideltone . . . Ipsa aecclesia tenet Adrelie . . . Radulfus tenet de abbate Torneberie.”
[354 ] D. B. i. 136: “Canonici Lundonienses tenent.” Ibid. 146: “Canonici de Oxeneford tenent.” Ibid. 157: “Canonici S. Fridesvidae tenent.” Ibid. 247 b: “Canonici de Hantone tenent.”
[355 ] D. B. i. 17: “Canonici de Cicestre tenent communiter.”
[356 ] Gierke, D. G. R. iii. 195; “parietes possessionem retineant.” Ibid. 252: “bona ipsa sunt loci inclusi muro, ad instar vacantis hereditatis, quae vicem personae obtinet.”
[357 ] As to all this see Gierke, D. G. R. iii. § 8.
[358 ] Gierke, D. G. R. iii. 343, 402, 491. Why the law should create “fictions” which commit torts and crimes, must always be a difficult question, though when once breach of contract or wrongful possession has been attributed to a corporation the plunge has been made. If, however, wrong-doing was to be ascribed to an ecclesia, there was convenience in the theory that this “church” was only nomen iuris or an intellectual device and not a member of the body of Christ.
[359 ] Gierke, D. G. R. iii. 271, says that this personification of the sedes or dignitas did not introduce a second and independent category of juristic persons beside the corporation; rather the canonist’s idea of a corporation was already so much the idea of an institution [not of an organized body of men] that the corporate element in it might disappear altogether without any essential change becoming necessary. True, he continues, the personified dignitas was not directly subsumed under the title of a corporation [this is just what did happen in England], but it was regarded as a phenomenon analogous to a corporation, and to some extent as a variation on the same theme. So far as we are aware the “corporation sole” begins to appear eo nomine only in the later Year Books.
[360 ] Placit. Abbrev. 304 (Norff.). Y. B. 21–22 Edw. I. p. 33: “le eglise est dedeinz age.” Comp. Bract. f. 226 b: “Et cum ecclesia fungatur vice minoris, acquiritur per rectorem et retinet per eundem, sicut minor per tutorem. Et quamvis moriatur rector, non tamen cadit ecclesia a seisitna sua, de aliquo de quo rector seisitus moritur nomine ecclesiae suae, non magis quam minor si custos suus moriatur.” Thus it is to Bracton a matter of indifference whether the church be seised by the instrumentality of its rector, or the rector be seised on behalf of his church; the two phrases are equivalent.
[361 ] Co. Lit. 300 b, 301 a.
[362 ] The same is true of an independent priory; the prior is its representative before the law.
[363 ] See e.g. cc. 1, 2, 3, X. 3, 10; two of these three passages deal with English cases.
[364 ] For the writs of entry “sine assensu” see Bracton, f. 323; Note Book, pl. 866, 1727; Reg. Brev. Orig. f. 230.
[365 ] Stat. Marlb. c. 28. This came of our having no “real” action for movables.
[366 ] Placit. Abbrev. 49 (temp. Joh.): “Dominus episcopus Londoniensis . . . petit . . . unam sokam . . . ut ius suum quod pertinet ad baroniam suam quam tenet de episcopatu suo.”
[367 ] The usual form of a royal charter makes this clear; the grant is “to God and the church of St. Mary and the bishop of Salisbury and his successors; to God and the church of SS. Mary and Ethelbert of Hereford and Giles bishop of the said church and his successors”; Rot. Cart. 67, 106.
[368 ] D. B. i. 135: “Terra Roberti Episcopi de Cestre. Episcopus de Cestre tenet Mimmine . . . Hoc manerium non est de episcopatu, sed fait Raynerii patris Roberti episcopi.”
[369 ] We shall return to this point in the next section.
[370 ] The Epistolae Cantuarienses contain a long account from the twelfth century of the litigation between the Archbishop and the monks of Christ Church touching a partition of their territory. In this case even Domesday Book shows a partition; the Archbishop has land and “the monks of the Archbishop” have other land.
[371 ] Y. B. 40 Edw. III. f. 28 per Finchden; Prynne, Records, ii. 764.
[372 ] Early cases of prebendaries suing are Placit. Abbrev. 62 (Dorset); Note Book, pl. 411. As to the division of land between bishop and chapter, see 25 Ass. f. 116, pl. 8.
[373 ] Placit. Abbrev. 53 (Hereford), action against the canons of Hereford; Note Book, pl. 482, 493, 654, 692, 886, actions by and against “the dean and chapter” of St. Paul’s.
[374 ] Bracton’s best passage about this matter (f. 374 b) runs as follows:—If an abbot, prior, or other collegiate men demand land or an advowson or the like in the name of their church on the seisin of their predecessors, they say “And whereof such an abbot was seised in his demesne etc.” They do not in their count trace a descent from abbot to abbot, or prior to prior, nor do they mention the abbots or priors intermediate [between themselves and him on whose seisin they rely,] for in colleges and chapters the same body endures for ever, although all may die one after the other, and others may be placed in their stead; just as with flocks of sheep, the flock remains the same though the sheep die; nor does one succeed to another by right of succession as when a right descends heritably, for the right always belongs to the church and the church is permanent: and this one sees in charters, where the gift is made first and foremost to God and such a church, and only in a secondary way to the monks or canons.
[375 ] Glanv. x. c. 12; Britton, i. 164–66.
[376 ] Chron. Jocelini de Brakelonda, pp. 2, 4, 22.
[377 ] Y. B. Mich. 15 Edw. II. f. 452.
[378 ]Dr. Bonham’s Case, 8 Rep. 118 a; 2nd Inst. 587–88.
[379 ] Fitz. Abr. Annuitie, pl. 41 (apparently from an unprinted Y. B.).
[380 ] Gierke, D. G. R. iii. 322, 392, 470.
[381 ] Bracton, f. 228 b.
[382 ] See Gierke, D. G. R. ii. 562–68.
[383 ] Y. B. 20–21 Edw. I. p. 57: “Mes yl ne tendy nul averement pur le Roy, pur coe ke le Roy sy est prerogatyf”; p. 69 “Le Roy est prerogatif; par quey nul prescripcion de tens ne court encontre ly”; p. 112 “You can not, in this writ of right, demand on the seisin of Kings Richard and John and Henry, in such wise that if one fail, you may hold to the others.” “Sir, we can, for the king is prerogative.” Y. B. 33–35 Edw. I. p. 407: “Le roi est en sa terre si prerogatif qil ne voet aver nul sur luy” . . . “Pur sa prerogativeté ne serrioms mie oustez de nos services.”
[384 ] Bracton, f. 132 b: “Non enim poterit rex gratiam facere cum iniuria et damno aliorum. Poterit quidem dare quod suum est, hoc est pacem suam, . . . quod autem alienum est dare non potest per suam gratiam.”
[385 ] Bracton, f. 107: “Ad hoc autem creatus est et electus, ut iustitiam faciat universis.”
[386 ] P. Q. W. 389. See also Note Book, pl. 199, where “the young king,” Henry son of Henry II., is mentioned in the pedigree; “et de ipso Henrico [secundo] descendit ius illius advocacionis Henrico Regi filio suo et de ipso Henrico Regi Ricardo fratri suo.”
[387 ] Glanvill, vii. 3.
[388 ] Bracton, f. 267 b, 282, 327 b; Note Book, pl. 230, 982. In the Très ancien coutumier, ed. Tardif, p. 13 we find “Filius, licet postgenitus, heres propinquior est hereditatis patris sui quam nepotes, filii fratris sui primogeniti”; but a glossator adds “sicut contingit de Johanne, rege Anglico, et de multis aliis, et hoc est falsissimum iudicium.”
[389 ] Y. B. 20–21 Edw. I. p. 73: “Nota ke nul home ne put chalanger la descente encontre le Roy, tot seyt coe en un bref de dreit.”
[390 ] Note Book, pl. 1127, 1227, 1273.
[391 ] See the Processus Scotiae, Foedera, i. 762. Bruce at one turn in the argument asserted “quod mulier regnare non debet, quia officium regiminis exercere non potest.” The theory that the kingdom was partible was but the second string to his bow. At another turn he asserted that the ordinary rules of inheritance were inapplicable and that the canons for the inheritance of a kingdom should be found in “the law of nature.”
[392 ] Bract. f. 108: “Dictum est supra de ordinaria iurisdictione, quae pertinet ad regem: consequenter dicendum est de iurisdictione delegata.”
[393 ] Bract. f. 107.
[394 ] Plac. Abbrev. p. 107 (25 Hen. III.): “Et quia dominus rex absens fuit, nec fuerunt ibi nisi pauci de consilio domini Regis, noluerunt illi qui praesentes fuerunt adiudicare duellum nec aliud in absentia ipsius domini Regis vel maioris consilii sui.”
[395 ] Rot. Cl. i. 114: writ pardoning Jacob of Poterne.
[396 ] Rot. Cur. Reg. (ed. Palgrave) i. 47 (ad 1194): “Et dominus Cantuariensis [Hubert Walter, chief justiciar,] dicit quod ipse accepit ab ore domini Regis quod ipse redderet seisinam terrae . . . Consideratum est quod magis ratum habetur quod dominus Rex ore praecepit quam quod per litteras mandavit.” Note Book, pl. 239 (ad 1234): “testificatio domini Regis per cartam vel viva voce omnem aliam probationem excedit.”
[397 ] See the cautious passage in Bracton, f. 171 b.
[398 ] See the violent passage in Bracton, f. 34 and Fleta, p. 17. For reasons given in the Introduction to Bracton’s Note Book, i. 29–33, we do not believe that this was part of Bracton’s original text and gravely doubt whether he wrote it.
[399 ] Y. B. 33–35 Edw. I. p. 471: “en auncien temps chescun bref e de dreit e de possessioun girreit ben ver le roi.”
[400 ] Bl. Comm. iii. 184: “In the times of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry.”
[401 ] Y. B. 22 Edw. III. f. 3 (Hil. pl. 25); 24 Edw. III. f. 55 (Trin. pl. 40); 43 Edw. III. f. 22 (Mich. pl. 12). The passages are given by Allen, Prerogative, 190.
[402 ] Bracton, f. 5 b: “Si autem ab eo [sc. a rege] petatur, cum breve non currat contra ipsum, locus erit supplicationi.” Again f. 382 b: “summoneri non potest per breve.” See also f. 52, 107, 171 b, 368, 412; also Note Book, i. pp. 26–33.
[403 ] Note Book, pl. 1108.
[404 ] Rot. Cl. i. 549.
[405 ] Bacon, Case de Rege Inconsulto (Works, ed. Spedding, vii. 694): “for you will not revive old fables (as Justinian calls things of that nature) Praecipe Henrico Regi etc. ”
[406 ] Bracton, f. 171 b. Note Book, pl. 401, 1106, 1108, 1133, 1141, 1236, 1593, 1766. Y. B. 30–31 Edw. I. p. 172; 33–35 Edw. I. p. 539. Reg. Brev. Orig. 221–22.
[407 ] Note Book, pl. 1183: “vocat inde ad warantum dominum Regem.” Contrast pl. 393: “Rex debet ei warentizare si ausus esset illum vocare ad warantum sicut alium hominem.” Bracton, f. 382 b; Y. B. 21–22 Edw. I. p. 287.
[408 ] Bacon, Works, ed. Spedding, vii. 693.
[409 ] Britton, i. 221: “Rois ausi ne porraint rien aliener des dreitz de lour coroune ne de lour reauté, qe ne soit repellable par lour successours.” See above, p. 406.
[410 ] See Luchaire, Manuel des institutions, p. 49. This notion begets the ius spolii, droit de dépouilles, of continental law.
[411 ] Magna Vita S. Hugonis, p. 334.
[412 ] Second Charter of Stephen: Stubbs, Select Charters; Statutes, vol. i. (Charters) p. 3.
[413 ] Diceto, ii. 12. He cites the rubric of Dig. 2. 2.
[414 ] Mat. Par. Chron. Maj. iv. 522, 604.
[415 ] We make our nearest approach to the personification of a temporal office when some officer attempts to prescribe for fees or perquisites. In 7 Edw. I. a castellan of Bamborough is charged with holding certain pleas which, according to general law, belong to the sheriff. He replies, “I found the said castle seised of this custom.” Here Bamborough castle is personified. But this is not a fruitful idea. Northumberland Assize Rolls, 353.
[416 ] See the protests of 1301 and 1366; Foedera, i. 926; Rolls of Parliament, ii. 290. Stubbs, Const. Hist. § 700: “John’s surrender and subsequent homage first created the shadow of a feudal relation, which was respected by Henry III., but repudiated by the parliaments of Edward I. and Edward III.” As to Richard’s transactions with the Emperor, it was easy for an Englishman to hold them “void for duress”; they were “contra leges, contra canones, contra bonos mores”; Diceto, ii. 113.
[417 ] See above, p. 366.
[418 ] Will of Edward III., Nicolas, Royal Wills, p. 59. He distinguishes between “debita nostra contemplacione personae nostrae contracta” and “debita racione regni seu guerrarum nostrarum contracta.”
[419 ] Henry died late on Wednesday. Edward’s peace was proclaimed in Westminster Hall early on Thursday. But he dates his reign from the next Sunday, on which day his father was buried and the magnates took the oath of fealty. Foedera, i. 497.
[420 ] Select Pleas of the Crown (Seld. Soc.), pl. 84. In John’s day an appellor alleges a crime committed during the late interregnum but after “the peace of the King then Duke of Normandy and Lord of England” had been sworn.
[421 ] Note Book, pl. 1500 (ad 1221): “Loquela ista remaneat ad aetatem domini Regis ut tunc faciat inde voluntatem suam.” Ibid. pl. 1639 (ad 1223): “Iudicium ponitur in respectum usque ad aetatem domini Regis.”
[422 ] Mat. Par. (from Wendover) iii. 75–76, 91, 122.
[423 ] Note Book, pl. 1221. The king of Scots petitions for a wardship, urging in his favour something that happened during the minority. Henry’s council replies that this happened “tempore Huberti de Burgo Comitis Kantiae qui amicus fuit et familiaris ipsi Regi Scotiae et qui regnum Angliae habuit in manu sua.” Therefore it is of no avail.
[424 ] This point will be further discussed in our next chapter where we deal with borough charters.
[425 ] See above, pp. 475–76.
[426 ] Rolls of Parliament, i. 102–5: “Episcopus Dunelmensis dupplicem habet statum, scilicet, temporalem et spiritualem, et ad statum illum temporalem incarcerationes et imprisonamenta per ministros eiusdem Episcopi pertinent facienda.”
[427 ] P. Q. W. 429–30. Thornton the king’s counsel pleads that the king “est alterius condicionis quam prius fuit et quasi altera persona.” The earl replies, “Una et eadem persona est tam in statu regio quam in statu quo vocabatur communiter Dominus Edwardus”—King Edward is the same person as the Lord Edward of former times.
[428 ] Bracton, f. 55 b: “Est enim corona regis facere iusticiam et iudicium et tenere pacem, et sine quibus corona consistere non potest, nec tenere.”
[429 ] Placit. Abbrev. p. 339 (15 Edw. II.): “de iure coronae suae etc., quae semper est quasi minoris aetatis.”
[430 ] Chronicles of Edward I. and Edward II., ed. Stubbs, i. p. 153, ii. p. 33, 65; Statutes of the Realm, i. 182; Calvin’s Case, 7 Coke’s Rep. 11; see also In re Stepney Election Petition, 17 Q. B. D. 54.
[431 ] Gierke, D. G. R. ii. 564–68.