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

imprisonment.³⁶ But it was too late for a system of “personal,” that is of racial laws. Even in France law was becoming territorial, and a king of the English who was but duke of the Normans was interested in obliterating a distinction which stood in his way if he was to be king of England. The rules which mark the distinction between the two races rapidly disappear or are diverted from their original purpose. Murder fines will swell the royal treasure, and early in Henry I.’s reign it is already law that every slain man is a Frenchman unless his Englishry can be proved.³⁷ Outside the towns, Englishmen seem to have taken to trial by battle very [p.70] kindly, and already in the first years of the twelfth century William’s ordinance about procedure had lost its force.³⁸ No doubt William and his sons distrusted the English; even Henry would suffer no Englishman to be abbot or bishop.³⁹ No doubt too the English were harshly and at times brutally treated; but harshness and brutality are one thing, an attempt to rule them by Norman law would have been another.

Maintenance of English land law.Indeed the capital instance of harsh treatment consists in an application of the theory that they have not been conquered by foreign enemies, but, having rebelled against one who was de iure king of the English, are to be lawfully punished for their unlawful revolt. Those who fought by Harold’s side forfeited their lands, and so of course did those who resisted William after he was crowned. These forfeitures, so far from clearing the way for pure Norman land law, had the effect of bringing even the Norman barons under English land law. Here a combination might be made of all that was favourable to the duke in the Norman, with all that was favourable to the king in the English system. William’s tenants in chief were to owe him definite quantities of military service; the somewhat vaguely territorialized scheme which had produced Harold’s army was to be superseded by a set of determinate contracts, more determinate perhaps than any that had as yet been concluded in Normandy. On the other hand, the king was going rigorously to exact the old English land tax, the danegeld. With geld in view he achieved the most magnificent of all his feats, the compilation of Domesday Book. It is very possible that he purposed to reform the capricious assessment which had come down to him from his ancestors. In the meantime, however, each Norman baron was to stand in the geld system just where some one Englishman or some definite group of Englishmen had stood. For the purpose of taxation the Frenchman [p.71] succeeded to the duties of his English antecessores. Moreover, what the Frenchman succeeded to was in many cases a superiority over free tenants of the soil. The rights of these tenants might be left to the uncovenanted mercies of their new lord; but the superiority often included rights of a jurisdictional kind, rights of sake and soke, and in this matter the king had an interest. The French lord was not to get other fines and forfeitures than those which his antecessor had received. For a long time after the Conquest a serious attempt was made to maintain the old law of sake and soke despite its archaisms.

The English in court.All this made English testimony and English tradition of importance; the relative rights of the various Norman magnates were known only to Englishmen. Englishmen were mixed up with Frenchmen at the moots and often spoke the decisive word. The aged Æthelric, Bishop of Chichester, “a man very learned in the laws of the land,” was brought by the Conqueror’s command to Penenden Heath that he might hear Lanfranc wax eloquent over sake and soke and flymena-fyrmð.⁴⁰ Eadric the steersman of the Confessor’s ship, and Kineward who had been sheriff of Worcestershire, Siward of Shropshire, and Thurkill of Warwickshire were ready to attest the sake and soke which the church of Worcester had over Hamton and Bengeworth; but the Abbot of Evesham dared not face them.⁴¹ Godric, Godwin and Colswein were among the “approved knights French and English” who heard the Abbot of Ely’s suit at Kentford, and that suit, in which many Normans were concerned, was decided under the king’s command by a verdict of English jurors who knew how the disputed lands lay in the time of King Edward.⁴² The Abbot of Abingdon was protected in his possessions by the learning and eloquence of lawyerly English monks, whose arguments were not to be withstood.⁴³

Norman ideas and institutions.On the other hand, it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently [p.72] true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury and of a hard and fast formulary system of actions which will be tough enough to resist the attacks of Romanism. However, the fate of the inquest was still in the balance a century after the Conquest, and, but for the comprehensive ordinances of Henry II., it might have perished in England as it perished in its original home. Whether any definitely new idea is introduced into the English land law is a more disputable question, that cannot be here discussed, but undoubtedly the conquest, the forfeiture, the redistribution of the land gave to the idea of dependent and derivative tenure a dominance that it could not obtain elsewhere, and about that idea in its Norman or French shape there clung traditions of the old Frankish world, which in the subjugated country under its foreign kings might bear fruit in a land law of unexampled simplicity. As to the institutes of private law we know much too little to justify dogmatic ascriptions of this to an English and that to a French origin; and when the French origin may be granted, we are far from being able to say that here is something which the Normans brought with them in the year 1066. French influences had been at work in the court of Edward the Confessor; Frankish influences had been at work in the courts of much earlier kings; after the Conquest England lay open for two centuries and more to the latest Parisian fashions. For example, the style of the English chancery—and this in England becomes the model for all legal documents—goes back by one path and another through the Frankish chancery to Rome. But the paths are very various. Some of the Conqueror’s charters are very like those which Edward and Cnut had issued, and very unlike those of Henry II.⁴⁴ We may say, if we please, that the seal, of which our law made much in the later middle ages, of which it makes much at the present day, is French. But the Confessor had a seal, and in all probability but very few of the men who fought by the side of the Norman duke had seals. The chief result of the Norman Conquest in the history of law is [p.73] to be found not so much in the subjection of race to race as in the establishment of an exceedingly strong kingship which proves its strength by outliving three disputed successions and crushing a rebellious baronage.⁴⁵

Rufus.During the whole Norman period there was little legislation. We have spoken of the Conqueror’s laws. It seems probable that Rufus set the example of granting charters of liberties to the people at large. In 1093, sick and in terror of death, he set his seal to some document that has not come down to us. Captives were to be released, debts forgiven, good and holy laws maintained.⁴⁶ Whatever promises he made, he broke. His claim upon the historians of English law is of another kind: for he surely built her an house to dwell in. Englishmen were proud of his work at Westminster. Search the wide world round, they said, there is no such hall for feast and plea.

      Aulam maiorem construxit Londoniarum,

      Orbis terrarum non optinet utiliorem

      Iudicibus legis, ac ad convivia regis,

      Regum regnorum flos est domus illa domorum.⁴⁷

      The verses are rude but have the right ring in the ears of English lawyers.

      Henry I.Henry at his coronation, compelled to purchase adherents, granted a charter full of valuable and fairly definite concessions.⁴⁸ He was going back to his father’s ways. The abuses introduced by his brother were to be abolished, abuses in the matter of reliefs, wardships, marriages, murder fines and so forth. Debts and past offences were to be forgiven. The demesne lands of the military tenants were to be free from the danegeld. Above all the laga Eadwardi as amended by William I. was to be restored.