Book: Our Legal Heritage, 4th Ed.

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




Royal income came from customary dues, profits of coinage and of
justice, and revenues from the King's own estates. For war, there
was no change in the custom that a man with five hides of land was
required to furnish one heavy-armed horseman for forty days
service in a year. The fyrd was retained. A threat of a Viking
invasion caused the Conquerer to reinstate the danegeld tax at 6s.
per hide, which was three times its old rate. (The price of an ox
was still about 30d.) To impose this tax uniformly, he sent
commissioners to conduct surveys by sworn verdicts of appointed
groups of local men. A detailed survey of land holdings and the
productive worth of each was made in 1086. The English called it
the "Doomsday Book" because there was no appeal from it.

The survey revealed, for instance, that one estate had "on the
home farm five plough teams: there are also 25 villeins and 6
cotters with 14 teams among them. There is a mill worth 2s. a year
and one fishery, a church and four acres of meadow, wood for 150
pigs and two stone quarries, each worth 2s. a year, and two nests
of hawks in the wood and 10 slaves." This estate was deemed to be
worth 480s. a year.

Laxton "had 2 carucates of land [assessed] to the geld. [There is]
land for 6 ploughs. There Walter, a man of [the lord] Geoffrey
Alselin's has 1 plough and 22 villeins and 7 bordars [a bordar had
a cottage and a small amount land in return for supplying small
provisions to his lord] having 5 ploughs and 5 serfs and 1 female
serf and 40 acres of meadow. Wood [land] for pannage [foraging by
pigs] 1 league in length and half a league in breadth. In King
Edward's time it was worth 9 pounds; now [it is worth] 6 pounds."

Ilbert de Laci has now this land, where he has twelve ploughs in
the demesne; and forty-eight villani, and twelve bordars with
fifteen ploughs, and three churches and three priests, and three
mills of ten shillings. Wood pastures two miles long, and one
broad. The whole manor five miles long and two broad. Value in
King Edward's time sixteen pounds, the same now.

That manor of the town of Coventry which was individually held was
that of the Countess of Coventry, who was the wife of the earl of
Mercia. "The Countess held in Coventry. There are 5 hides. The
arable land employs 20 ploughs. In the demesne lands there are 3
ploughs and 7 bondmen. There are 50 villeins and 12 bordars with
20 ploughs. The mill there pay[s] 3 shillings. The woodlands are 2
miles long and the same broad. In King Edward's time and
afterwards, it was worth 22 pounds [440 s.], now only 11 pounds by
weight. These lands of the Countess Godiva Nicholas holds to farm
of the King."

The survey shows a few manors and monasteries owned a salt-house
or salt-pit in the local saltworks, from which they were entitled
to obtain salt.

In total there were about 110,000 villani [former coerls regarded
as customary, irremovable cultivator tenants]; 82,000 bordarii;
7,000 cotarii and cotseti [held land by service of labor or rent
paid in produce], and 25,000 servi [landless laborers]. There are
no more theows.

In the nation, there was a total of about 25,000 servi [landless
laborers], over 82,000 borderii, nearly 7,000 coatarii and cotseti
[held land or houses by service of labor or rent paid in produce],
and nearly 110,000 villani. This survey resulted in the first
national tax system of about 6s. per hide of land.

The survey also provided the Conquerer with a summary of customs
of areas. For instance, in Oxfordshire, "Anyone breaking the
King's peace given under his hand and seal to the extent of
committing homicide shall be at the King's mercy in respect of his
life and members. That is if he be captured. And if he cannot be
captured, he shall be considered as an outlaw, and anyone who
kills him shall have all his possessions. The king shall take the
possessions of any stranger who has elected to live in Oxford and
who dies in possession of a house in that town, and without any
kinfolk. The king shall be entitled to the body and the
possessions of any man who kills another within his own court or
house excepting always the dower of his wife, if he has a wife who
has received dower.

The courts of the king and barons became schools of chivalry
wherein seven year old noble boys became as pages or valets, wore
a dagger and waited upon the ladies of the household. At age
fourteen, they were advanced to squires and admitted into more
familiar association with the knights and ladies of the court.
They perfected their skills in dancing, riding, fencing, hawking,
hunting, jousting, and engaged in team sports in which the goal
was to put the other side to rout. They learned the knightly art
of war. Enemy fighters were to be taken and held for ransom rather
than killed. Those engaging in rebellion were to be pardoned and
restored to some or all of their lands and titles. Lords' sons
could be mutually exchanged with an enemy's as security for peace.
After achieving knighthood, a man usually selected a wife from the
court at which he grew up. Parents tried to send their daughters
to a household superior in social status not only to learn
manners, but to make a good marriage. A girl who did not marry was
often sent to a nunnery; a dowry was necessary before her
acceptance.

The following incidents of land tenure began (but were not firmly
established until the reign of Henry II). Each tenant, whether
baron or subtenant, was to pay an "aid" in money for ransom if his
lord was captured in war, for the knighthood of his lord's eldest
son, and for the marriage of his lord's eldest daughter. The aid
was theoretically voluntary. Land could be held by an heir only if
he could fight. The eldest son began to succeed to the whole of
the lands in all military tenures. Younger sons of great houses
became bishops. An heir of a tenant had to pay a heavy "relief" on
succession to his estate. The relief replaced the heriot. If there
was a delay in proving heirship or paying relief, the lord would
hold the land and receive its income in the meantime, often a
year. If an heir was still a minor or female, he or she passed
into his lord's wardship, in which the lord had guardianship of
the heir and possession of the estate, with all its profits. The
mother was not made a minor's guardian. No longer was the estate
protected by the minor's kin as his birthright. A female heir was
expected to marry a man acceptable to the lord. The estate of an
heiress and her land was generally sold to the highest bidder. If
there were no heirs, the land escheated to the lord. If a tenant
committed felony, his land escheated to his lord. The word
"felony" came from the Latin word meaning "to deceive" and
referred to the feudal crime of betraying or committing treachery
against one's lord.

Astrologers resided with the families of the barons. People went
to fortune tellers' shops. There was horse racing, steeple races,
and chess for recreation. Girls had dolls; boys had toy soldiers,
spinning tops, toy horses, ships, and wooden models.

The state of medicine is indicated by this medical advice brought
to the nation by William's son after treatment on the continent:

"If thou would have health and vigor Shun cares and avoid anger.
Be temperate in eating And in the use of wine. After a heavy meal
Rise and take the air Sleep not with an overloaded stomach And
above all thou must Respond to Nature when she calls."

The Conquerer allowed Jewish traders to follow him from Normandy
and settle in separate sections of the main towns. Then engaged in
long-distance trade, money-changing, and money-lending. They
loaned money for interest for the building of castles and
cathedrals. Christians were not allowed by the church to engage in
this usury. The Jews could not become citizens nor could they have
standing in the local courts. Instead, a royal justiciar secured
justice for them. They could practice their own religion.

William the Conquerer was succeeded as king by his son William II
(Rufus), who transgressed many of the customs of the nation to get
more money for himself. He was killed by an arrow of a fellow
hunter while they and William's younger brother Henry were hunting
together in a crown forest. Henry then became king.



- The Law -

The Norman conquerors brought no written law, but affirmed the
laws of the nation. Two they especially enforced were:

Anyone caught in the act of digging up the King's road, felling a
tree across it, or attacking someone so that his blood spilled on
it shall pay a fine to the King.

All freemen shall have a surety who would hand him over to justice
for his offenses or pay the damages or fines due. If an accused
man fled, his surety would have a year to find him to obtain
reimbursement.

The Conquerer proclaimed that:

No cattle shall be sold except in towns and before three
witnesses.

For the sale of ancient chattels, there must be a surety and a
warrantor.

No man shall be sold over the sea. (This ended the slave trade at
the port of Bristol.)

The death penalty for persons tried by court is abolished.



- Judicial Procedure -

"Ecclesiastical" courts were created for bishops to preside over
cases concerning the cure of souls and criminal cases, in which
the ordeal was used. When the Conquerer did not preside over this
court, an appeal could be made to him.

The hundred and county courts now sat without clergy and handled
only "civil" cases. They were conducted by the King's own
appointed sheriff. Only freemen and not bound villeins had
standing in this court. They continued to transact their business
in the English language.

The local jurisdictions of thegns who had grants of sac and soke
or who exercised judicial functions among their free neighbors
were now called "manors" under their new owners, who conducted a
manor court.

The Conquerer's Royal Court was called the "Curia Regis". When the
Conquerer wished to determine the national laws, he summoned
twelve elected representatives of each county to declare on oath
the ancient lawful customs and law as they existed in the time of
the popular King Edward the Confessor. The recording of this law
was begun. A person could spend months trying to catch up with the
Royal Court to present a case. Sometimes the Conquerer sent the
justiciar or commissioners to hold his Royal Court in the various
districts. The commissioner appointed groups of local men to give
a collective verdict upon oath for each trial he conducted. The
Conquerer allowed, on an ad hoc basis, certain high-level people
such as bishops and abbots and those who made a large payment, to
have land disputes decided by an inquiry of recognitors. Besides
royal issues, the Curia Regis heard appeals from lower court
decisions. It used English, Norman, feudal, Roman, and canon law
legal principles to reach a decision, and was flexible and
expeditious.

A dispute between a Norman and an English man over land or a
criminal act could be decided by trial by combat [battle]. Each
combatant first swore to the truth of his cause and undertook to
prove by his body the truth of his cause by making the other
surrender by crying "craven" [craving forgiveness]. The combatants
used weapons like pick-axes and shields. Presumably the man in the
wrong would not fight as well because he was burdened with a
guilty conscience. Although this trial was thought to reflect
God's will, it favored the physically fit and adept person. After
losing the trial by combat, the guilty person would be punished
appropriately.

London had its own traditions. All London citizens met at its
folkmoot, which was held three times a year to determine its
public officers, to raise matters of public concern, and to make
ordinances. Its criminal court had the power of outlawry as did
the county courts. Trade, land, and other civil issues were dealt
with by the Hustings Court, which met every Monday in the
Guildhall. The city was divided into wards, each of which was
under the charge of an elected alderman [elder man]. (The election
was by a small governing body and the most wealthy and reputable
men and not a popular election.) The aldermen had special
knowledge of the law and a duty to declare it at the Hustings
Court. Each alderman also conducted wardmoots in his ward and
decided criminal and civil issues between its residents. Within
the wards were the guilds of the city.

The Normans, as foreigners, were protected by the king's peace.
The entire hundred was the ultimate surety for murder and would
have to pay a "murdrum" fine of 31 pounds [46 marks] for the
murder of any Norman, if the murderer was not apprehended by his
lord within a few days. The reaction to this was that the murderer
mutilated the corpse to make identification of ethnicity
impossible. So the Conquerer ordered that every murder victim was
assumed to be Norman unless proven English. This began a court
custom in murder cases of first proving the victim to be English.

The Royal Court decided this case: "At length both parties were
summoned before the King's court, in which there sat many of the
nobles of the land of whom Geoffrey, bishop of Coutances, was
delegated by the King's authority as judge of the dispute, with
Ranulf the Vicomte, Neel, son of Neel, Robert de Usepont, and many
other capable judges who diligently and fully examined the origin
of the dispute, and delivered judgment that the mill ought to
belong to St. Michael and his monks forever. The most victorious
King William approved and confirmed this decision."





- - - Chapter 5 - - -



- The Times: 1100-1154 -

King Henry I, son of William the Conquerer, furthered peace
between the Normans and native English by his marriage to a niece
of King Edward the Confessor called Matilda. She married him on
condition that he grant a charter of rights undoing some practices
of the past reigns of William I and William II. Peace was also
furthered by the fact that Henry I had been born in England and
English was his native tongue. The private wars of lords were now
replaced by less serious mock battles.

Henry was a shrewd judge of character and of the course of events,
cautious before taking action, but decisive in carrying out his
plans. He was faithful and generous to his friends. He showed a
strong practical element of calculation and foresight. Although
illiterate, he was intelligent and a good administrator. He had an
efficient intelligence gathering network and an uncanny knack of
detecting hidden plans before they became conspiratorial action.
He made many able men of inferior social position nobles, thus
creating a class of career judges and administrators in opposition
to the extant hereditary aristocracy. He loved books and built a
palace at Oxford to which he invited scholars for lively
discussion.

Queen Matilda served as regent of the kingdom in Henry's absence,
as William's queen had for him. Both queens received special
coronation apart from their husbands; they held considerable
estates which they administered through their own officers, and
were frequently composed of escheated honors. Matilda was learned
and a literary patron. She founded an important literary and
scholastic center. Her compassion was great and her charities
extensive. In London she founded several almshouses and a care-
giving infirmary for lepers. These were next to small monastic
communities. She also had new roads and bridges built.

Henry issued charters restoring customs which had been
subordinated to royal impositions by previous Kings, which set a
precedent for later Kings. His coronation charter describes
certain property rights he restored after the oppressive reign of
his brother.

"Henry, King of the English, to Samson the bishop, and Urse of
Abbetot, and to all his barons and faithful vassals, both French
and English, in Worcestershire, greeting.

[1.] Know that by the mercy of God and by the common
counsel of the barons of the whole kingdom of England I have
been crowned king of this realm. And because the kingdom has
been oppressed by unjust exactions, I now, being moved by
reverence towards God and by the love I bear you all, make
free the Church of God; so that I will neither sell nor
lease its property; nor on the death of an archbishop or a
bishop or an abbot will I take anything from the demesne of
the Church or from its vassals during the period which
elapses before a successor is installed. I abolish all the
evil customs by which the kingdom of England has been
unjustly oppressed. Some of those evil customs are here set
forth.

[2.] If any of my barons or of my earls or of any other of
my tenants shall die his heir shall not redeem his land as
he was wont to do in the time of my brother [William II
(Rufus)], but he shall henceforth redeem it by means of a
just and lawful 'relief`. Similarly the men of my barons
shall redeem their lands from their lords by means of a just
and lawful 'relief`.

[3.] If any of my barons or of my tenants shall wish to give
in marriage his daughter or his sister or his niece or his
cousin, he shall consult me about the matter; but I will
neither seek payment for my consent, nor will I refuse my
permission, unless he wishes to give her in marriage to one
of my enemies. And if, on the death of one of my barons or
of one of my tenants, a daughter should be his heir, I will
dispose of her in marriage and of her lands according to the
counsel given me by my barons. And if the wife of one of my
tenants shall survive her husband and be without children,
she shall have her dower and her marriage portion [that
given to her by her father], and I will not give her in
marriage unless she herself consents.

[4.] If a widow survives with children under age, she shall
have her dower and her marriage portion, so long as she
keeps her body chaste; and I will not give her in marriage
except with her consent. And the guardian of the land, and
of the children, shall be either the widow or another of
their relations, as may seem more proper. And I order that
my barons shall act likewise towards the sons and daughters
and widows of their men.

[5.] I utterly forbid that the common mintage [a forced levy
to prevent loss to the King from depreciation of the
coinage], which has been taken from the towns and counties,
shall henceforth be levied, since it was not so levied in
the time of King Edward [the Confessor]. If any moneyer or
other person be taken with false money in his possession,
let true justice be visited upon him.

[6.] I forgive all pleas and all debts which were owing to
my brother [William II], except my own proper dues, and
except those things which were agreed to belong to the
inheritance of others, or to concern the property which
justly belonged to others. And if anyone had promised
anything for his heritage, I remit it, and I also remit all
'reliefs' which were promised for direct inheritance.

[7.] If any of my barons or of my men, being ill, shall give
away or bequeath his movable property, I will allow that it
shall be bestowed according to his desires. But if,
prevented either by violence or through sickness, he shall
die intestate as far as concerns his movable property, his
widow or his children, or his relatives or one his true men
shall make such division for the sake of his soul, as may
seem best to them.

[8.] If any of my barons or of my men shall incur a forfeit,
he shall not be compelled to pledge his movable property to
an unlimited amount, as was done in the time of my father
[William I] and my brother; but he shall only make payment
according to the extent of his legal forfeiture, as was done
before the time of my father and in the time of my earlier
predecessors. Nevertheless, if he be convicted of breach of
faith or of crime, he shall suffer such penalty as is just.

[9.] I remit all murder-fines which were incurred before the
day on which I was crowned King; and such murder-fines as
shall now be incurred shall be paid justly according to the
law of King Edward [by sureties].

[10.] By the common counsel of my barons I have retained the
forests in my own hands as my father did before me.

[11.] The knights, who in return for their estates perform
military service equipped with a hauberk [long coat] of
mail, shall hold their demesne lands quit of all gelds
[money payments] and all work; I make this concession as my
own free gift in order that, being thus relieved of so great
a burden, they may furnish themselves so well with horses
and arms that they may be properly equipped to discharge my
service and to defend my kingdom.

[12.] I establish a firm peace in all my kingdom, and I
order that this peace shall henceforth be kept.

[13.] I restore to you the law of King Edward together with
such emendations to it as my father [William I] made with
the counsel of his barons.

[14.] If since the death of my brother, King William [II],
anyone shall have seized any of my property, or the property
of any other man, let him speedily return the whole of it.
If he does this no penalty will be exacted, but if he
retains any part of it he shall, when discovered, pay a
heavy penalty to me.

Witness: Maurice, bishop of London; William, bishop-elect of
Winchester; Gerard, bishop of Herefore; Henry the earl; Simon the
earl; Walter Giffard; Robert of Montfort-sur-Risle; Roger Bigot;
Eudo the steward; Robert, son of Haimo; and Robert Malet.

At London when I was crowned. Farewell."

Henry took these promises seriously, which resulted in peace and
justice. Royal justice became a force to be reckoned with by the
multiplication of justices. Henry had a great respect for legality
and the forms of judicial action. He became known as the "Lion of
Justice".

The payment of queen's gold, that is of a mark of gold to the
queen out of every hundred marks of silver paid, in the way of
fine or other feudal incident, to the king, probably dates from
Henry I's reign.

A woman could inherit a fief if she married. The primary way for a
man to acquire control of land was to marry an heiress. If a man
were in a lower station than she was, he had to pay for his new
social status as well as have royal permission. A man could also
be awarded land which had escheated to the King. If a noble woman
wanted to hold land in her own right, she had to make a payment to
the King. Many widows bought their freedom from guardianship or
remarriage from the King. Women whose husbands were at war also
ran the land of their husbands.

Barons were lords of large holdings of farmland called "manors".
Many of the lesser barons left their dark castles to live in semi-
fortified stone houses, which usually were of two rooms with rug
hangings for drafts, as well as the sparse furniture that had been
common to the castle. There were shuttered windows to allow in
light, but which also let in the wind and rain when open. The roof
was of thatch or narrow overlapping wood shingles. The stone floor
was strewn with hay and there was a hearth near the center of the
floor, with a louvered smoke hole in the timber roof for escape of
smoke. There were barns for grain and animals. Beyond this area
was a garden, orchard, and sometimes a vineyard. The area was
circumscribed by a moat over which there was a drawbridge to a
gatehouse.

The smaller room was the lord and lady's bedroom. It had a
canopied bed, chests for clothing, and wood frames on which
clothes could be hung. Life on the manor revolved around the
larger room, or hall, where the public life of the household was
passed. There, meals were served. The daily diet typically
consisted of milk, soup, porridge, fish, vegetables, and bread.
Open hospitality accompanied this communal living. There was
little privacy. Manor household villeins carried the lord's
sheaves of grain to the manor barn, shore his sheep, malted his
grain, and chopped wood for his fire. At night some slept on the
floor of the hall. Others, who were cottars and bordars, had their
own dwellings nearby.

The manor house of lesser lords or knights was still built of
wood, although it often had a stone foundation.

About 35% of the land was arable land, about 25% was common
pasture land (for grazing only) or meadow land (near a stream or
river and used for hay or grazing), and about 15% was woodland.
There were these types of land and wasteland on each manor. The
arable land was allotted to the villeins in strips to equalize the
best and worst land and their distance from the village where the
villeins lived. There was three-way rotation of wheat or rye, oats
or barley, and fallow land. Cows, pigs, sheep, and fowl were kept.
The meadow was allocated for hay for the lord's household and each
villein's. The villeins held land of their lord for various
services such as agricultural labor or raising domestic animals.
The villeins worked about half of their time on their lord's
fields [his demesne land], which was about a third of the
farmland. This work was primarily to gather the harvest and to
plough with oxen, using a yoke over their shoulders, and to sow in
autumn and Lent. They threshed grain on barn floors with flails
cut from holly or thorn, and removed the kernels from the shafts
by hand. Work lasted from sunrise to sunset and included women and
children. The older children could herd geese and pigs, and set
snares for rabbits. The young children could gather nuts and
berries in season and other wild edibles, and could pick up little
tufts of wool shed by sheep. The old could stay in the hut and
mind the children, keep the fire going and the black pot boiling,
sew, spin, patch clothes, and cobble shoes. The old often suffered
from rheumatism. Many people had bronchitis. Many children died of
croup [inflammation of the respiratory passages]. Life expectancy
was probably below thirty-five.

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