The History of English Law before the Time of Edward I. Frederic William Maitland

That in Normandy the right of doing justice and receiving the profits thereof had become heritable is plain. The honores of the Norman nobles comprised rights of jurisdiction; the viscounts were in name the successors of royal officials, of Frankish vicecomites whose offices had become hereditary.¹⁹ Also the lands of the churches were defended by ducal grants of “immunity,” [p.50] grants modelled on Frankish precedents.²⁰ But the principles which regulated the existence and the competence of seignorial courts are very dark to us. Whether the right to hold a court can only be conferred by the sovereign’s grant, or whether it arises from the mere relation between lord and men, or between lord and tenants, is a question to which we get no certain answer for a long time after the conquest of England, whether we ask it of England or of Normandy. In good times, however, the duke’s justice was powerful throughout his duchy. It is as supreme judge hearing and deciding the causes of all his subjects, the guardian of the weak against the mighty, the stern punisher of all violence, that his courtly chroniclers love to paint him,²¹ and we may doubt whether in his own country the Conqueror had ever admitted that feudal arrangements made by his men could set limits to his jurisdiction.²²

Limits to the ducal power.As to any constitutional restraints on the ducal power, the most opposite opinions have prevailed. The duke of the earliest period has been everything, from the most absolute of monarchs to a mere first among equals.²³ What we know is that when the time for the conquest of England is approaching, the duke consults, or professes to consult the great men of his realm, lay and spiritual, the optimates, the proceres of Normandy. He holds a court; we dare hardly as yet call it a court of his tenants in chief; but it is an assembly of the great men, and the great men are his vassals. Seemingly it is for them to make the judgments of the court,²⁴ and just as the English [p.51] witan attest or confirm the king’s grants, so the Norman proceres attest or confirm the charters of the duke.²⁵ In the lower courts also, so it would seem, the lord of the court is not the only judge; he is surrounded by doomsmen.²⁶

Legal procedure.Probably the ordinary procedure of the courts was much the same in Normandy and in England. In neither country had men passed the stage at which they look to the supernatural for proof of doubtful facts. The means of proof are solemn formal oaths and ordeals designed to elicit the judgment of God.²⁷ One ordeal the Normans recognized which had no place in English law, namely, the ordeal of battle.²⁸ When immediately after the Conquest we find this mode of proof in England, we may say with some certainty that here we have a Norman institution. The same may be said with great probability of a far more important institution, of which we must speak at length hereafter, namely the sworn inquest, the germ of the jury.

Criminal law.Perhaps criminal law, or what served as such, had reached a later stage of development in Normandy than in England. The great need of the time was that the ancient system of money compositions, of bót and wer and wíte, should give way before a system of true punishments, and in Normandy the alternations of rough anarchy and stern repression may have hastened this desirable process. At any rate from Normandy we hear little or nothing of the old money payments, though at one time they had been familiar enough both to the Franks and to the Norsemen, and in En gland the writers of the twelfth century, who still know all about the wer of the West-Saxon, the Mercian, the Dane, say no word of the Norman’s wer and show no acquaintance with any Norman or [p.52] Frankish criminal tariff.²⁹

Ecclesiastical law.We may be more certain that in another direction Norman law had outstripped English law along what must seem to us a destined path of progress. It had come in sight of an ecclesiastical jurisprudence, of conflicts and compacts between church and state. Within our island church and state might still appear as but two phases of one organization; on the continent this could not be so. Long ago the claim of a “supernational” church to jurisdiction had raised difficult problems and been satisfied for a while by complicated compromises—but only for a while, for the church was not easily satiable.³⁰ By the Conquest England was drawn into the midstream of a controversial torrent. Whatever else he might leave for the future, the Conqueror would have to define in precise terms his relation to the spiritual power in his new kingdom, and his definition would, if this were possible, be that which had come down to him from Norman dukes and Frankish kings. On the one hand, he would concede an ample room to “the canons and episcopal laws”; on the other he would insist that the spiritual power should assume no right in England that it had not exercised in Normandy.³¹

The truce of God.One ecclesiastical institution there was in Normandy, which, so William might hope, would hardly be necessary in England: the truce of God. In England the old family blood-feud was not dead, but it had not as yet developed into the feudal right of private warfare. In France a religious movement, which had its origin in the south, had been setting limits to this anarchical right by putting [p.53] certain places and persons and seasons under the protection of the church and outside the limits of fair fighting. The truce of God had been received in Normandy; it reigned there after England had been conquered; but we only find very faint and uncertain traces in England either of it or of that tolerated private warfare which it presupposed.³²

Condition of the peasantry.Of the condition of the great mass of the inhabitants of Normandy, the tillers of the soil, we know singularly little; the chronicles have hardly a word to say about them, the charters do little more than mention their existence. This we know, that in the early years of Richard the Good there was a formidable revolt of the Norman peasants, which was fiercely suppressed. According to the chronicler, the insurgents showed a high degree of organization; they sent representatives to a central assembly.³³ This story, remarkable if true, is scarcely less remarkable if false, but the mere rebellion will make us believe that the Norman peasant was seldom a slave. It has been said by high authority that there are few traces of any serfage in Normandy even in the eleventh century, none in the [p.54] twelfth.³⁴ The charters of the Conqueror’s day frequently speak of hospites, coloni, rustici, villani, rarely of servi, though now and again we have hints that some men and some lands are not deemed “free.”³⁵ In later times Normandy was distinguished among the provinces of France by a singular absence of serfage, and such evidence as we have tends to show that the Conqueror left a land where there were few slaves for one in which there were many, for one in which the slave was still treated as a vendible chattel, and the slave-trade was flagrant.

Jurisprudence.The Normans then had no written law to bring with them to England, and we may safely acquit them of much that could be called jurisprudence. Not but that there were among them men distinguished above others for their knowledge of the law. The famous founder of the Abbey of Bec, Herlwin, who had spent most of his life as layman and knight, was deeply learned in the law of the land, and when he had become an abbot he still gave opinions in temporal causes; but not until he was near forty years of age did he learn the first rudiments of letters.³⁶ His legal knowledge was probably the same in kind as that attributed, as we shall read hereafter, to the English bishop Æthelric and the monks of Abingdon, a knowledge of the law to be evoked by concrete cases, not a body of doctrine to be taught or written in a book.Lanfranc the Pavian lawyer. But the mention of Herlwin must remind us of Herlwin’s prior, of Lanfranc the lawyer of Pavia, of Lanfranc the Conqueror’s right-hand man. Those who tell us of the great theologian, of the great disciplinarian, never forget to add that he was a lawyer of world-wide fame, the most accomplished of pleaders. Now, as we have already said, the Lombard lawyers, especially the lawyers of Pavia, had been