Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




Prostitutes were to be driven out of the land or destroyed in the
land, unless they cease from their wickedness and make amends to
the utmost of their ability.

Neither husband nor wife could sell family property without the
other's consent.

If there was a marriage agreement, it determined the wife's
"dower", which would be hers upon his death. Otherwise, if a man
who held his land in socage [owned it freely and not subject to a
larger landholder] died before his wife, she got half this
property. If there were minor children, she received all this
property.

Inheritance of land to adult children was by the custom of the
land held. In some places, the custom was for the oldest son to
take it and in other places, the custom was for the youngest son
to take it. Usually, the sons each took an equal portion by
partition, but the eldest son had the right to buy out the others
as to the chief messuage [manor; dwelling and supporting land and
buildings] as long as he compensated them with property of equal
value. If there were no legitimate sons, then each daughter took
an equal share when she married.

In London, one-third of the personal property of a decedent went
to his wife, one-third went to his children in equal shares, and
one-third he could bequeath as he wished.

"If a man dies intestate [without a will], his lord shall have
heriot [horses, weapons, shields, and helmets] of his property
according to the deceased's rank and [the rest of] the property
shall be divided among his wife, children, and near kinsmen."

A man could justifiably kill an adulterer in the act with the
man's wife, daughter, sister, or mother. In Kent, a lord could
fine any bondswoman of his who had become pregnant without his
permission [childwyte].

A man could kill in defense of his own life, the life of his
kinsmen, his lord, or a man whose lord he was. The offender was
"caught red-handed" if the blood of his victim was still on him.
Self-help was available for hamsocne [breaking into a man's house
to assault him].

Murder is punished by death as follows: "If any man break the
King's peace given by hand or seal, so that he slay the man to
whom the peace was given, both his life and lands shall be in the
King's power if he be taken, and if he cannot be taken he shall be
held an outlaw by all, and if anyone shall be able to slay him he
shall have his spoils by law." The king's peace usually extended
to important designated individuals, churches, assemblies, those
traveling to courts or assemblies, and particular times and
places. Often a king would extend his peace to fugitives from
violent feuds if they asked the king, earls, and bishops for time
to pay compensation for their misdeeds. From this came the
practice of giving a portion of the "profits of justice" to such
men who tried the fugitive. The king's peace came to be extended
to those most vulnerable to violence: foreigners, strangers, and
kinless persons.

"If anyone by force break or enter any man's court or house to
slay or wound or assault a man, he shall pay 100s. to the King as
fine."

"If anyone slay a man within his court or his house, himself and
all his substance are at the King's will, save the dower of his
wife if he have endowed her."

If a person fights and wounds anyone, he is liable for his wer. If
he fells a man to death, he is then an outlaw and is to be seized
by raising the hue and cry. And if anyone kills him for resisting
God's law or the king's, there will be no compensation for his
death.

A man could kill a thief over twelve years in the act of carrying
off his property over 8d., e.g. the thief hand-habbende [a thief
found with the stolen goods in his hand] or the thief back-berend
[a thief found carrying stolen goods on his back].

Cattle theft could be dealt with only by speedy pursuit. A person
who had involuntarily lost possession of cattle is to at once
raise the hue and cry. He was to inform the hundred-man, who then
called the tithing-men. All these neighbors had to then follow the
trail of the cow to its taker, or pay 30d. to the hundred for the
first offense, and 60d. for the second offense, half to the
hundred and half to the lord, and half a pound [10s.] for the
third offense, and forfeiture of all his property and declared
outlaw for the fourth offense. If the hundred pursued a track into
another hundred, notice was to be given to that hundred-man. If he
did not go with them, he had to pay 30s. to the king.

If a thief was brought into prison, he was to be released after 40
days if he paid his fine of 120s. His kindred could become his
sureties, to pay according to his wer if he stole again. If a
thief forfeited his freedom and gave himself up, but his kindred
forsook him, and he does not know of anyone who will make bot for
him; let him then do theow-work, and let the wer abate for the
kindred.

Measures and weights of goods for sale shall be correct.

Every man shall have a warrantor to his market transactions and no
one shall buy and sell except in a market town; but he shall have
the witness of the portreeve or of other men of credit, who can be
trusted.

Moneyers accused of minting money outside a designated market
were to go to the ordeal of the hot iron with the hand that was
accused of doing the fraud. If he was found guilty, his hand that
did the offense was to be struck off and be set up on the money-
smithy.

No marketing, business, or hunting may be done on Sundays.

No one may bind a freeman, shave his head in derision, or shave
off his beard. Shaving was a sign of enslavement, which could be
incurred by not paying one's fines for offenses committed.

No clergy may gamble or participate in games of chance.

The Laws for London were:

"1. The gates called Aldersgate and Cripplegate were in charge of
guards.

2. If a small ship came to Billingsgate, one half-penny was paid
as toll; if a larger ship with sails, one penny was paid.

1) If a hulk or merchantman arrives and lies there, four pence
is paid as toll.

2) From a ship with a cargo of planks, one plank is given as
toll.

3) On three days of the week toll for cloth [is paid] on Sunday
and Tuesday and Thursday.

4) A merchant who came to the bridge with a boat containing fish
paid one half-penny as toll, and for a larger ship one penny."

5 - 8) Foreigners with wine or blubber fish or other goods and
their tolls.

Foreigners were allowed to buy wool, melted sheep fat [tallow],
and three live pigs for their ships.

"3. If the town-reeve or the village reeve or any other official
accuses anyone of having withheld toll, and the man replies that
he has kept back no toll which it was his legal duty to pay, he
shall swear to this with six others and shall be quit of the
charge.

1) If he declares that he has paid toll, he shall produce the
man to whom he paid it, and shall be quit of the charge.

2) If, however, he cannot produce the man to whom he paid it, he
shall pay the actual toll and as much again and five pounds to
the King.

3) If he vouches the tax-gatherer to warranty [asserting] that
he paid toll to him, and the latter denies it, he shall clear
himself by the ordeal and by no other means of proof.

4. And we [the king and his counselors] have decreed that a man
who, within the town, makes forcible entry into another man's
house without permission and commits a breach of the peace of the
worst kind ... and he who assaults an innocent person on the
King's highway, if he is slain, shall lie in an unhonored grave.

1) If, before demanding justice, he has recourse to violence,
but does not lose his life thereby, he shall pay five pounds
for breach of the King's peace.

2) If he values the good-will of the town itself, he shall pay
us thirty shillings as compensation, if the King will grant us
this concession."

5. No base coin or coin defective in quality or weight, foreign or
English, may be used by a foreigner or an Englishman. (In 956, a
person found guilty of illicit coining was punished by loss of a
hand.)



- Judicial Procedure -

There were courts for different geographical communities. The
arrangement of the whole kingdom into shires was completed by 975
after being united under King Edgar.

A shire was a larger area of land, headed by an earl. A shire
reeve or "sheriff" represented the royal interests in the shires
and in the shire courts. This officer came to be selected by the
king and earl of the shire to be a judicial and financial deputy
of the earl and to execute the law. The office of sheriff, which
was not hereditary, was also responsible for the administration of
royal lands and royal accounts. The sheriff summoned the freemen
holding land in the shire, four men selected by each community or
township, and all public officers to meet twice a year at their
"shire-mote". Actually only the great lords - the bishops, earls,
and thegns - attended. The shire court was primarily concerned
with issues of the larger landholders. Here the freemen
interpreted the customary law of the locality. The earl declared
the secular law and the bishop declared the spiritual law. They
also declared the sentence of the judges. The earl usually took a
third of the profits, such as fines and forfeits, of the shire
court, and the bishop took a share. In time, the earls each came
to supervise several shires and the sheriff became head of the
shire and assumed the earl's duties there, such as heading the
county fyrd. The shire court also heard cases which had been
refused justice at the hundred-mote and cases of keeping the peace
of the shire.

The hundred was a division of the shire, having come to refer to a
geographical area rather than a number of households. The monthly
hundred-mote could be attended by any freeman holding land (or a
lord's steward), but was usually attended only by reeve, thegns,
parish priest, and four representatives selected by each agrarian
community or village - usually villeins. Here transfers of land
were witnessed. A reeve, sometimes the sheriff, presided over
local criminal and peace and order issues ["leet jurisdiction",
which derived from sac and soc jurisdiction] and civil cases at
the hundred court. All residents were expected to attend the leet
court. The sheriff usually held each hundred court in turn. The
suitors to these courts were the same as those of the shire
courts. They were the judges who declared the law and ordered the
form of proof, such as compurgatory oath and ordeal. They were
customarily thegns, often twelve in number. They, as well as the
king and the earl, received part of the profits of justice.
Summary procedure was followed when a criminal was caught in the
act or seized after a hue and cry. Every freeman over age twelve
had to be in a hundred and had to follow the hue and cry.

"No one shall make distraint [seizure of personal property out of
the possession of an alleged wrong-doer into the custody of the
party injured, to procure a satisfaction for a wrong committed] of
property until he has appealed for justice in the hundred court
and shire court".

In 997, King Ethelred in a law code ordered the sheriff and twelve
leading magnates of each shire to swear to accuse no innocent man,
nor conceal any guilty one. This was the germ of the later assize,
and later still the jury.

The integrity of the judicial system was protected by certain
penalties: for swearing a false oath, bot as determined by a
cleric who has heard his confession, or, if he has not confessed,
denial of burial in consecrated ground. Also a perjurer lost his
oath-worthiness. Swearing a false oath or perjury was also
punishable by loss of one's hand or half one's wergeld. A lord
denying justice, as by upholding an evil-doing thegn of his, had
to pay 120s. to the king for his disobedience. Furthermore, if a
lord protected a theow of his who had stolen, he had to forfeit
the theow and pay his wer, for the first offense, and he was
liable for all he property, for subsequent offenses. There was a
bot for anyone harboring a convicted offender. If anyone failed to
attend the gemot thrice after being summoned, he was to pay the
king a fine for his disobedience. If he did not pay this fine or
do right, the chief men of the burh were to ride to him, and take
all his property to put into surety. If he did not know of a
person who would be his surety, he was to be imprisoned. Failing
that, he was to be killed. But if he escaped, anyone who harbored
him, knowing him to be a fugitive, would be liable pay his wer.
Anyone who avenged a thief without wounding anyone, had to pay the
king 120s. as wite for the assault.

"And if anyone is so rich or belongs to so powerful a kindred,
that he cannot be restrained from crime or from protecting and
harboring criminals, he shall be led out of his native district
with his wife and children, and all his goods, to any part of the
kingdom which the King chooses, be he noble or commoner, whoever
he may be - with the provision that he shall never return to his
native district. And henceforth, let him never be encountered by
anyone in that district; otherwise he shall be treated as a thief
caught in the act."

This lawsuit between a son and his mother over land was heard at a
shire-meeting: "Here it is declared in this document that a shire-
meeting sat at Aylton in King Cnut's time. There were present
Bishop AEthelstan and Earl Ranig and Edwin, the Earl's son, and
Leofwine, Wulfsige's son, and Thurkil the White; and Tofi the
Proud came there on the King's business, and Bryning the sheriff
was present, and AEthelweard of Frome and Leofwine of Frome and
Godric of Stoke and all the thegns of Herefordshire. Then Edwin,
Enneawnes son, came traveling to the meeting and sued his own
mother for a certain piece of land, namely Wellington and Cradley.
Then the bishop asked whose business it was to answer for his
mother, and Thurkil the White replied that it was his business to
do so, if he knew the claim. As he did not know the claim, three
thegns were chosen from the meeting [to ride] to the place where
she was, namely at Fawley, and these were Leofwine of Frome and
AEthelsige the Red and Winsige the seaman, and when they came to
her they asked her what claim she had to the lands for which her
son was suing her. Then she said that she had no land that in any
way belonged to him, and was strongly incensed against her son,
and summoned to her kinswoman, Leofflaed, Thurkil's wife, and in
front of them said to her as follows: 'Here sits Leofflaed, my
kinswoman, to whom, after my death, I grant my land and my gold,
my clothing and my raiment and all that I possess.' And then she
said to the thegns: 'Act like thegns, and duly announce my message
to the meeting before all the worthy men, and tell them to whom I
have granted my land and all my property, and not a thing to my
own son, and ask them to be witnesses of this.' And they did so;
they rode to the meeting and informed all the worthy men of the
charge that she had laid upon them. Then Thurkil the White stood
up in the meeting and asked all the thegns to give his wife the
lands unreservedly which her kinswoman had granted her, and they
did so. Then Thurkil rode to St. AEthelbert's minister, with the
consent and cognizance of the whole assembly, and had it recorded
in a gospel book."

Courts controlled by lords of large private estates had various
kinds of jurisdiction recognized by the King: sac and soke
[possession of legal powers of execution and profits of justice
held by a noble or institution over inhabitants and tenants of the
estate, exercised through a private court], toll [right to collect
a payment on the sale of cattle and property] and team [right to
hold a court to determine the honesty of a man accused of illegal
possession of cattle], infangenetheof [the authority to judge and
to hang and take the chattels of a thief caught on the property],
and utfangenetheof [the authority to judge and to hand and take
the chattels of a thief dwelling out of his liberty, and
committing theft without the same, if he were caught within the
lord's property]. Some lords were even given jurisdiction over
breach of the royal peace, ambush and treacherous manslaughter,
harboring of outlaws, forced entry into a residence, and failure
to answer a military summons. Often this court's jurisdiction
overlapped that of the hundred court and sometimes a whole hundred
had passed under the jurisdiction of an abbot, bishop, or earl.

A lord and his noble lady, or his steward, presided at this court.
The law was administered here on the same principles as at the
hundred court. Judges of the leet of the court of a large private
estate were chosen from the constables and four representatives
selected from each community, village, or town.

Before a dispute went to the hundred court, it might be taken care
of by the head tithing man, e;.g. cases between vills, between
neighbors, and some compensations and settlements, namely
concerning pastures, meadows, harvests, and contests between
neighbors.

The vill [similar to village] was the smallest community for
judicial purposes. There were several vills in a hundred.

In London, the Hustings Court met weekly and decided such issues
as wills and bequests and commerce matters. The folk-mote of all
citizens met three times a year. Each ward had a leet court [for
minor criminal matters].

The king and his witan decided the complaints and issues of the
nobility and those cases which had not received justice in the
hundred or shire court. The witan had a criminal jurisdiction and
could imprison or outlaw a person. The witan could even compel the
king to return any land he might have unjustly taken. Specially
punishable by the king was "oferhyrnesse": contempt of the king's
law. It covered refusal of justice, neglect of summons to gemot or
pursuit of thieves, disobedience to the king's offiers, sounding
the king's coin, accepting another man's dependent without his
leave, buying outside markets, and refusing to pay Peter's pence.

The forests were peculiarly subject to the absolute will of the
king. They were outside the common law. Their unique customs and
laws protected the peace of the animals rather than the king's
subjects. Only special officials on special commissions heard
their cases.

The form of oaths for compurgation were specified for theft of
cattle, unsoundness of property bought, and money owed for a sale.
The defendant denied the accusation by sweating that "By the Lord,
I am guiltless, both in deed and counsel, and of the charge of
which … accuses me." A compurgator swore that "By the Lord, the
oath is clean and unperjured which … has sworn.". A witness swore
that "In the name of Almighty God, as I here for … in true witness
stand, unbidden and unbought, so I with my eyes over-saw, and with
my ears over-heard, that which I with him say."

If a theow man was guilty at the ordeal, he was not only to give
compensation, but was to be scourged thrice, or a second geld be
given; and be the wite of half value for theows.





- - - Chapter 4 - - -



- The Times: 1066-1100 -

William came from Normandy to conquer England. He claimed that the
former King, Edward, the Confessor, had promised the throne to him
when they were growing up together in Normandy, if Edward became
King of England and had no children. The Conquerer's men and
horses came in boats powered by oars and sails. The conquest did
not take long because of the superiority of his military expertise
to that of the English. He organized his army into three groups:
archers with bows and arrows, horsemen with swords and stirrups,
and footmen with hand weapons. Each group played a specific role
in a strategy planned in advance. The English army was only
composed of footmen with hand weapons such as spears and shields.
They fought in a line holding up their shields to overlap each
other ane form a shieldwall. The defeat of the English was thought
to have been presaged by a comet.

At Westminster, he made an oath to defend God's holy churches and
their rulers, to rule the whole people subject to him with
righteousness and royal providence, to enact and hold fast right
law, and to utterly forbid rapine and unrighteous judgments. This
was in keeping with the traditional oath of a new king.

Declaring the English who fought against him to be traitors, the
Conquerer declared their land confiscated. But he allowed those
who were willing to acknowledge him to redeem their land by a
payment of money. As William conquered the land of the realm, he
parceled it out among the barons who fought with him so that each
baron was given the holdings of an Anglo-Saxon predecessor,
scattered though they were. The barons again made oaths of
personal loyalty to him [fealty]. They agreed to hold the land as
his vassals with future military services to him and receipt of
his protection. They gave him homage by placing their hands within
his and saying "I become your man for the tenement I hold of you,
and I will bear you faith in life and member [limb] and earthly
honor against all men". They held their land "of their lord", the
King, by knight's service. The king had "enfeoffed" them [given
them a fief: a source of income] with land. The theory that by
right all land was the King's and that land was held by others
only at his gift and in return for specified service was new to
English thought. The original duration of a knight's fee until
about 1100 was for his life; thereafter it was heritable. The word
"knight" came to replace the word "thegn" as a person who received
his position and land by fighting for the King. The exact
obligation of knight's service was to furnish a fully-armed
horseman to serve at his own expense for forty days in the year.
This service was not limited to defense of the country, but
included fighting abroad. The baron led his own knights under his
banner. The foot soldiers were from the fyrd or were mercenaries.
Every free man was sworn to join in the defense of the king, his
lands and his honor, within England and without.

The Saxon governing class was destroyed. The independent power of
earls, who had been drawn from three great family houses, was
curtailed. Most died or fled the country. Some men were allowed to
redeem their land by money payment if they showed loyalty to the
Conquerer. Well-born women crowded into nunneries to escape Norman
violence. The people were deprived of their most popular leaders,
who were excluded from all positions of trust and profit,
especially all the clergy. The earldoms became fiefs instead of
magistracies.

The Conquerer was a stern and fierce man and ruled as an autocrat
by terror. Whenever the people revolted or resisted his mandates,
he seized their lands or destroyed the crops and laid waste the
countryside and so that they starved to death. His rule was
strong, resolute, wise, and wary because he had learned to command
himself as well as other men. He was not arbitrary or oppressive.
The Conquerer had a strict system of policing the nation. Instead
of the Anglo-Saxon self-government throughout the districts and
hundreds of resident authorities in local courts, he aimed at
substituting for it the absolute rule of the barons under military
rule so favorable to the centralizing power of the Crown. He used
secret police and spies and the terrorism this system involved.
This especially curbed the minor barons and preserved the public
peace.

The English people, who outnumbered the Normans by 300 to 1, were
disarmed. Curfew bells were rung at 7:00 PM when everyone had to
remain in their own dwellings on pain of death and all fires and
candles were to be put out. This prevented any nightly gatherings,
assassinations, or seditions. Order was brought to the kingdom so
that no man dare kill another, no matter how great the injury he
had received. The Conquerer extended the King's peace on the
highways, i.e. roads on high ground, to include the whole nation.
Any individual of any rank could travel from end to end of the
land unharmed. Before, prudent travelers would travel only in
groups of twenty.

The barons subjugated the English who were on their newly acquired
land. There began a hierarchy of seisin [rightful occupation] of
land so that there could be no land without its lord. Also, every
lord had a superior lord with the king as the overlord or supreme
landlord. One piece of land may be held by several tenures. For
instance, A, holding by barons's service of the King, may enfeoff
B, a church, to hold of him on the terms of praying for the souls
of his ancestors, and B may enfeoff a freeman C to hold of the
church by giving it a certain percentage of his crops every year.
There were about 200 barons who held land directly of the King.
Other fighting men were the knights, who were tenants or
subtenants of a baron. Knighthood began as a reward for valor on
the field of battle by the king or a noble. The value of a
knight's fee was 400s. [20 pounds] per year. Altogether there were
about 5000 fighting men holding land.

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