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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 2

THE CONQUEST TO HENRY II: THE BEGINNINGS OF ADMINISTRATION

The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England. The Norse invaders who had settled in Normandy had made it in a century and a half (911-1066) the best-ruled state in Europe, and the gifts for strong administration and for orderly accounting and finance which had been displayed in the duchy were to have fuller opportunities in the conquered kingdom. William the Bastard had been Duke of Normandy since 1035, and by 1047 (when he was twenty) the turbulent barons were beginning to feel his strength. Nearly twenty years of hard work in Normandy preceded the expedition to England, and in that interval William had imposed some sort of discipline upon his baronage, and had finally made peace with the Church (after a long quarrel) through the help of Lanfranc, whom he afterwards made Archbishop of Canterbury. Personally a devout Christian, he yet insisted that the Church should keep the place which he assigned to it, and in fact he secured an effective control over its policy, notably in appointments to the higher dignities. Then, too, he had developed a remarkably good financial organisation, the “Chamber” (camera), and although the duchy revenues were not particularly large, yet there was clearly the machinery ready to collect revenue energetically and to control its disposition.

THE CONQUEST AND “DOMESDAY BOOK”

Such was the position of Duke William when he undertook the desperate adventure of invading England by transporting 5,000 men and 2,500 horses across the Channel, an astonishing performance in those days. The Battle of Hastings (1066) and the death of King Harold quickly settled him upon the throne of his new kingdom. Reforms began at once. The casual “treasure” of the Anglo-Saxon kings was reorganised as an Exchequer on business lines, and was used to keep a firm hold upon the sheriffs and local government generally. As for the Church, he continued the Norman attitude of strengthening the Church internally, enriching it and maintaining its discipline (newly reformed by the great Pope Gregory VII), although at the same time restricting its political power. This strongly contrasted with the preconquest state of things when the bishops sat in all the courts and mingled ecclesiastical and secular business. William, by an ordinance,1 insisted that the bishops should not transact ecclesiastical business in the hundred courts, but should hold their own Courts Christian for the purpose; and from that day to this the Church has maintained its separate system of courts administering canon law. Church and State which had been inextricably connected in the Anglo-Saxon age henceforth were strictly separate, a policy which happened to coincide with the Church’s own ambitions as well as with William’s. His last years were absorbed in the great survey of the kingdom which is known as Domesday Book. The original two volumes together with the chest constructed for their preservation are still in the Public Record Office in London, where Domesday Book holds an honoured place as the oldest public record. Indeed, during the middle ages it was so respected that it was called simply “the record”, so great was its authority. The land was described county by county, village by village, the owners and their subtenants were listed and their holdings valued, even the farm stock was recorded, with a view to settling clearly the rights of the Crown and the taxable resources of the country. In several cases a few precious lines will summarise the customs of a county or city, and so give us an insight into the local law in force.2 Most valuable information can be extracted from it as to the state of freedom or serfdom in different parts of the country, and it is possible that the strict insistence of the Exchequer officials upon the letter of Domesday Book, and their refusal to allow it to be questioned, was the beginning of the notion of “record” as a technical thing. From this one book the idea of certain officially compiled documents being beyond question seems to have spread to the rolls of the Exchequer, and thence to the rolls of the courts of law. If this conjecture is true, then “Records” must be regarded as financial in origin, and only later becoming judicial.3

Another effect of Domesday Book was to assert the chain of feudal relationships and to assure the overlordship of the Crown. Thus the title of every piece of land in England could be expressed in the formula that A holds it of his feudal lord B, who holds of C, who holds of —— the King. This insistence of the Norman and succeeding kings that they were the undisputed lords, direct or indirect, of every piece of land in the country is of the gravest importance, for it provided a sure foundation for the growth in later times of the common law. For this and many other reasons too technical to mention here, it has been said that “If English history is to be understood, the law of Domesday Book must be mastered”.1 This opportunity of systematising the land situation enabled the Conqueror to make England the most perfectly organised feudal state in Europe, and in this sense we may say that we are indebted to him for the feudal system. But he refused to allow the great barons whose tenure intervened between him and their sub-tenants to turn their position to political advantage, and one of his last acts was to assemble a great meeting (1086) at Salisbury where came all his counsellors “and all the land-owning men of property that there were all over England, whosesoever men they were, and all bowed down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all men”2 —even against their immediate lords. In this way William tried to prevent the feudal anarchy and private war against which he had struggled for so many years in Normandy.3

His work, then, was pre-eminently that of systematisation. A few great reforms there were, but his greatest contribution was the Norman spirit of clever administration and orderly government, and his own stern enforcement of royal rights. Upon this basis was the common law to be built in later days. In other respects he was content to continue the old English laws and customs, expressing his policy in a brief but stately charter which is still preserved by the City of London:4

Of William II (Rufus) there is little to say except that he rashly provoked a feud with the Church, in consequence of which Archbishop Anselm suffered years of exile and “by his firmness set up a new standard of independence for the English clergy, and made the opening move in the struggle between Church and State in England”.1 At the same time, the efficient central administration was employed under the direction of the king’s principal minister, Ranulf Flambard, in converting the incidents of feudal tenure into engines of financial oppression.

CHURCH AND STATE

With the reign of Henry I (1100-1135) we come to a more important period of legal history. His first act was very significant. Just as the Conqueror had made the short promise of good government to London which we have just quoted, so his son Henry I issued a formal Charter in 1100 promising to stop the oppressive practices which his brother Rufus had introduced; then he chose as his queen Edith, who was a representative of the old English royal house, and so conciliated the English. His principal trouble (apart from a baronial revolt which was soon quelled) came from the Church which was growing anxious at the rapid rise of powerful monarchies which were apt to use the Church for political ends. Soon the issue became definite and Europe-wide in the form of the “Investiture Contest”. The Conqueror had compelled the cathedrals to elect his nominees as bishops and had himself delivered to them the emblems of spiritual as well as of temporal authority. Gregory VII as early as 1075 prohibited lay investiture, holding that the Church was independent of the State, and that no temporal ruler could confer ecclesiastical authority. A long struggle followed which on the continent took the form of the spectacular struggle between the Empire and the papacy. In England Henry I and Archbishop Anselm were subject to the moderating influence of the great canon lawyer Ivo of Chartres who devised a compromise in 1107; the King resigned his claim to invest bishops with the ring and staff (the emblems of their spiritual authority), while Anselm agreed that cathedral chapters should come to the King’s chapel and elect bishops in his presence—thus leaving room for a reasonable amount of royal influence. This wise settlement was extended to all Europe only after much bitter strife in 1122.

The conflict is one of the central facts in mediaeval history, for it shows a clear-cut issue upon which a saintly man of Anselm’s type would unhesitatingly decide that he had higher duties than those which he owed to the Crown. The Concordat of Worms of 1122 did not permanently end the dispute, which soon revived upon slightly different ground; indeed, in its most general sense the quarrel is likely to last as long as government itself. It has had important results upon the political theory of the State, some of the greatest minds of the middle ages having devoted their powers to the examination of the nature of kingship, the authority of law, and the limits which ought to be put upon the power of temporal rulers. Jurisprudence to-day bears the traces of these great events, in the course of which the State was criticised in terms of the highest ideal of government which then existed, that of the universal Church.1

HENRY I’s REFORMS

The rest of the reign is occupied with the peaceful activities of the Justiciar, Roger, Bishop of Salisbury, a Norman from Caen, who like so many of his race had something of the efficiency expert in his blood. Official tradition long respected him for his organisation of the Exchequer on strict business lines, and to him we owe the series of “Great Rolls of the Pipe”. The earliest in existence is dated 1130 and contains important legal as well as financial information. Some of the earlier rolls must be lost; but with a few gaps there is an almost complete series of Pipe Rolls from 1156 down to 1832—a remarkable sign of the permanence of Roger’s work. In this reign, therefore, we may place the elaboration of an efficient governmental organisation at Westminster. In local government Henry I was equally active; eleven untrustworthy sheriffs were dismissed in 1129; justiciars were sent on circuit to look after the pleas of the Crown (and they soon usurped for their master immense jurisdiction by asserting that any matter which concerned the King’s peace could be treated as a plea of the Crown), while it is clear that the Norman sheriffs were still administering in the county what was essentially Anglo-Saxon law, for we have some curious treatises (written between 1113 and 1118) which are attempts to state that old law in language that the Normans could understand.2 This in fact is the justification for the statement we have already made to the effect that the period of Anglo-Saxon law extended later than the Norman Conquest, and at least as late as the year 1100 or thereabouts. We therefore see that in the reign of Henry I the law was substantially Anglo-Saxon and administered by the sheriffs locally according to ancient custom (which was certainly not the same all over the country). As yet there was very little that could be called “common law”. So far there was only a great administrative machine well on the way towards a complete domination of the realm. From this great machine there will develop the future common law.1 Only in Sicily was such efficient administration to be found, and there too it was the work of Norman invaders.2

Henry’s death was a great loss to the nation:

The reign of King Stephen (1135-1154) is frequently called “the Anarchy”, so great were the disorders which filled it attendant upon the disputed title to the Crown. The machine which Henry I had perfected needed a firm hand to run it, and Stephen was content to let things drift. Art and letters, indeed, flourished, and Vacarius came to Oxford to teach Roman law and to write a less expensive text-book for poor English law students,4 but from the point of view of Norman efficiency the reign was disappointing: still,

HENRY II’s EMPIRE

With his successor, Henry II, we come to one of the most critical epochs in the history of the common law. By inheritance or by marriage he had acquired the rulership of England, Normandy, Aquitaine and Anjou, and like many of his barons divided his time between England and the continent. This close connection with France was to have important results for English law as we shall see later. Whatever the lessons of Anglo-Norman public administration, the revival of learning now in progress may have brought broader views and more generous ideals. Stubbs has made the attractive suggestion that perhaps the rapid growth of the universities

It must never be forgotten that the general standard of learning and culture of a nation has a large part in determining its law and polity.

CONSTITUTIONS OF CLARENDON

The reign opens (1154) with the confirmation of Henry I’s Charter of 1100, and with the great conflict between the King and Archbishop Becket. The separation of the ecclesiastical courts by William the Conqueror had had unexpected results, for in the succeeding hundred years the Church had developed a large mass of canon law and claimed wide jurisdiction. This law Becket determined to apply rigorously. Henry was equally determined to impose his own lay law (which also had recently been considerably enlarged in content and strengthened administratively).2 Many people were amenable in criminal matters to both jurisdictions, and Becket proclaimed that such people should not be tried twice—in other words, they should be tried but once, and that in the Church courts. Then certain things also were subject to both jurisdictions—Church lands, and the rights of ecclesiastical patronage (called advowsons). Finally, at a council in 1164 all the magnates of the realm “recognised” (the word is borrowed from the “recognition” or verdict of a jury) a list of customs which they declared were the practice of the reign of Henry I.

This statement, called the Constitutions of Clarendon, Henry II proposed as the basis of a compromise.3 Some of these provisions repeat practices dating from the reign of William I, such as in requiring the King’s permission before a tenant-in-chief can be excommunicated, or an appeal carried from the Church courts in England to Rome (cc. 7, 8, 10). Chapter 13 introduces the striking rule that a lord shall be held responsible by the King if his servants do wrong to a bishop. All litigation concerning advowsons is to be in the King’s court (c. 1), and so also cases involving the Church’s lands unless they be held in free alms (a tenure comporting no earthly services, and peculiar to Church property), but the fact of free alms or lay tenure is to be decided in the King’s court—which had been the rule in Normandy as well (c. 9). Chapter 15 contains the highly important rule that no plea of debt shall be withdrawn from the King’s jurisdiction on the grounds that the debt was accompanied by an oath or pledge of faith—spiritual censures may be imposed for breach of faith, but the civil jurisdiction over debt is not to be thereby ousted. This clause was not an unmixed benefit, for although the State thereby appropriated to itself a large jurisdiction over contract, nevertheless the law of the Church in this field was rapidly becoming more modern, more equitable and less formalistic. She had long punished breach of faith as a crime, and was soon to extend the idea and proclaim in addition the enforceability in law of promises (opinions to this effect appear first in 1212).1

Finally, it was declared by chapter 3 that clerks (that is to say, all who were in major or minor orders) when under accusation of crime should first answer in the King’s court, and then be remitted for trial by the bishop, and if he convicted, then they were to be returned to the lay court for punishment, for Henry insisted that degradation (the severest penalty the Church could inflict) was too mild for felonies. Last of all, Henry objected to laymen being tried in ecclesiastical courts, even for canonical offences, merely upon informations. So he offered the bishops the aid of a sheriff’s jury of presentment if the Church could find no other means of getting a public accuser.2

This compromise on the basis of old customs was effective, except as to the punishment of convicted clerks. On this point Henry had to yield after the murder of Becket in 1170, and thenceforward “benefit of clergy” eventually began to operate as a sort of first offender’s law, for it was the later rule that the culprit escaped punishment for the first offence only on proving his clergy.

THE EXCHEQUER

After the dramatic murder of Becket the interest turns to the rapid development of the administration under Henry II’s officials. The Treasury was under Nigel, Bishop of Ely (a nephew of Henry I’s Justiciar, Roger, Bishop of Salisbury), who further elaborated its constitution and procedure. Finally, having bought the office of Treasurer he conferred it upon his son, Richard fitz Nigel, Bishop of London, who wrote an extremely detailed account of the working of the Exchequer called the Dialogue of the Exchequer (1177-1179).3

The last ten years of the reign are dominated by Ranulf de Glanvill, the Justiciar. A competent general, diplomatist and judge, although an unscrupulous sheriff (he was twice removed from office), his name was attached to the first treatise upon the common law. The date is soon after 1187 and Glanvill’s nephew, Hubert Walter, has been suggested as possibly its author. It is a short, simple book, for the common law was neither very extensive nor very complicated. But for all that, it set the style of legal literature for many centuries to come, for the author of Glanvill invented the method of writing law in the form of a commentary upon the different writs.1

THE PLACE OF HENRY II

There are many other great events of this reign which we shall describe more fully in later chapters of this book. The extension of the system of itinerant justices; the growing definition of the courts of law; the widespread use of the jury; the establishment of the petty assizes2 as speedy methods of trying cases of recent dispossession of land; the Assize of Clarendon (1166) remodelling criminal procedure and systematising the presenting or grand jury;3 the Assize of Northampton (1176) which strengthened the claims of an heir to land against the feudal lord; the Assize of Arms (1181) which reorganised the local defence and police measures—these are only the greatest of the many reforms of Henry II’s reign. In the words of Bishop Stubbs:

[1]The ordinance expressly refers only to the hundred, and it would seem from Leges Henrici Primi, vii. 3 (reprinted in Stubbs, Select Charters), that the bishops continued to administer canon law in the county court as late as the reign of Henry I. This seems to be the last we hear of such a practice, however. (But see Stenton, English Feudalism, 108.)

[2]Some of them are reprinted in Stubbs’ Charters. For brief general accounts, see D. C. Douglas, The Domesday Survey, History (1936), xxi. 249 and V. H. Galbraith, Studies in the Public Records, 89-121.

[3]For an extreme development of this theory see the introduction by H. G. Richardson to the Memoranda Roll of 1 John (Pipe Roll Society, 1943). On the origin of the idea of “record”, see S. E. Thorne, Notes on courts of record in England, West Virginia Law Quarterly, xl. 347 ff., and Courts of record and Sir Edward Coke, University of Toronto Law Journal, ii. 24; Esmein, La Chose jugée, Revue historique de Droit français et étranger (1887), 545; Juliu, Goebel, introduction to John Henry Smith, Appeals to the Privy Council, xxvi ff.

[1]Maitland, Domesday Book and Beyond, 3.

[2]Anglo-Saxon Chronicle, cited in Stubbs, Select Charters.

[3]The attempt by G. B. Adams, Origin of the English Constitution, 186-187, to minimise the importance of the oath is not convincing; William’s motive in summoning so extraordinary an assembly seems undeniable. Cf. F. M. Stenton, First Century of English Feudalism (Oxford, 1932), 111-113, 137; D. C. Douglas, Feudal Documents from the Abbey of Bury St. Edmunds (Oxford, 1932), xcix-c, c, n. 1; H. A. Cronne, in History, xix. 248. In 1136 King Stephen spared certain rebels as they had not sworn fealty to him, but were the men of Baldwin of Redvers, Pollock and Maitland, i. 505 n. 5.

[4]Stubbs, Select Charters. The Conqueror’s work is well summarised by Corbett in Cambridge Mediaeval History, v. 496, 505-520.

[5]A. Ballard, British Borough Charters, 74, suggests that this is a promise to abandon the claim to a forfeiture upon intestacy (as to which, see below, p. 726).

[1]Corbett in Cambridge Mediaeval History, v. 526.

[1]For the political history of the investiture contest see Brooke in Cambridge Mediaeval History, v. 51-111; for the theory see a brief account in Dunning, History of Political Theories, Ancient and Mediaeval, 161-188, Sabine, History of Political Theory, 224 ff, McIlwain, Growth of Political Thought in the West, 203-318 (whose treatment will be of special interest from the legal point of view), and more fully, Carlyle, Mediaeval Political Theory, iv. 49-164. The Church’s view is expounded in detail in Walter Ullmann, Medieval Papalism (1949) and The Growth of Papal Government in the Middle Ages (1955). See also the brilliant lectures of A. L. Smith, Church and State in the Middle Ages. An important contribution to the study of early canon law in England has been made by Z. N. Brooke, The English Church and the Papacy from the Conquest to the reign of John (Cambridge, 1931).

[2]See below, p. 256.

[1]For Henry I, see in general Corbett in Cambridge Mediaeval History, v. 527-541, and A. L. Pooke, Domesday Book to Magna Carta.

[2]For Sicily, see Chalandon, ibid., 203-206.

[3]Anglo-Saxon Chronicle, in Stubbs, Select Charters. The same principle of the king’s peace dying with him haunted the books long after: Y.BB. Edward II (Selden Society), xx. 159 no. 71 (no date).

[4]This book, the Liber Pauperum, has been edited for the Selden Society (vol. xliv) by Professor de Zulueta, who has re-examined the evidence and reached the conclusion that “to doubt whether Vacarius ever taught at Oxford is to doubt against the evidence”.

[5]Corbett in Cambridge Mediaeval History, v. 552.

[1]Stubbs, Select Charters (Sketch of the Reign of Henry II).

[2]See The English Church and the Papacy, by Z. N. Brooke (Cambridge, 1931); R. Foreville, L’Église et la royauté sous Henri II (Paris, 1943); and for a different view, A. L. Poole, Domesday Book to Magna Carta, 197 ff.

[3]The text is in Stubbs, Charters.

[1]Spies, L’Observation des simples conventions en droit canonique (1928), 40 ff.

[2]See Maitland, History of English Law, i. 151-152, Haskins, Norman Institutions, 219, 329 ff., and Plucknett, The Medieval Bailiff (1954), 11-13.

[3]Text in the first eight editions of Stubbs, Charters, and in a critical edition by Hughes, Crump and Johnson (Oxford, 1902; revised, with translation by Charles Johnson, Edinburgh, 1950). Poole, Exchequer in the Twelfth Century (Oxford, 1912), is a full commentary. A manuscript was known to Coke, who cites it (Co. Lit. 58, 68 b) as “Ockam”. Cf. W. O. Hassall, Catalogue of the Library of Sir Edward Coke, no. 308.

[1]Glanvill has been edited with a wealth of valuable notes by Professor G. E. Woodbine (Yale University Press, 1932). See further, p. 256 below.

[2]For the different meanings of the word assize, see below, p. 112.

[3]For a translation and comments, see below, pp. 112-113.

[4]Stubbs, Constitutional History, § 147. Many of the original sources are collected and translated in English Historical Documents, ed. D. C. Douglas, vol. ii. (1954).