prison, was not without uneasiness as to the succession to his dominions;
for Robert’s son was an accomplished prince, and protected by the king
of France, whereas his own bore but a worthless character. However, to
secure the succession to him, he assembled the barons of Normandy in
Normandy, and those of England in England, and prevailed on them to
take the oath of allegiance to him as such. But he being soon after
drowned, the king, in hopes of male issue, took a second wife, and after
three years fruitless expectation, he turned his thoughts to making his
daughter Maud his heir, and did accordingly prevail on his nobility to
take the oath of allegiance to her as successor. But one of the steps he
took for securing the throne to her, in fact, defeated his scheme. He
knew that a woman had never yet sat on an European throne, that Spain,
which was the only nation that admitted persons to reign in the right
of females, had never suffered the female herself, but always set up
her son, if he was of a competent age; if not, her husband. As to the
circumstances of his own family, his grandson was an infant, and neither
he nor his daughter had confidence in her husband. He knew that this
oath was taken against the general bent of his people, and that little
dependance could be had on it when he was gone, so easy was it to get
absolution. His chief dependance was on the power and influence of his
natural son Robert, who, indeed, did not disappoint him, and of his
nephew Stephen, and of his brother Roger, bishop of Salisbury, on all of
whom he heaped wealth and honours.
Stephen, thus advanced, began to lift his eyes to the crown. He, as well
as his cousin Maud, was a grandchild of the Conqueror, and descended from
the Saxon kings; and he had the personal advantage of being a male, and
bearing an extraordinary good character. By his ability and generosity
he had become exceedingly popular, and his brother Roger secured the
clergy in his interest. Immediately on his uncle’s death, he seized his
treasure, which he employed as Henry had done William’s, and having
spread a report that Henry, on his death bed, had disinherited Maud, and
made him his heir, he was crowned in a very thin assembly of barons.
Sensible of his weakness, he immediately convoked a parliament at Oxford,
where, of his own motion, he swore, not only to rule with equity, but
that he would not retain vacant benefices long in his hands, that he
would sue none for trespassing in his forests, that he would disforest
all such as had been made by the late king, and abolish the odious tax of
_Danegelt_; concessions, which, with the pope’s approbation of his title,
so satisfied the people, that all the lords and prelates who favoured
Maud, and had kept aloof, and among them Robert her brother, came in, and
swore allegiance to him as long as he kept these engagements; from which
conditional oath they expected he would soon release them, and indeed
they did all they could to provoke him to it. This bait taking, and he
having disobliged his brother and the clergy, Maud’s friends rose in her
favour; and made the kingdom for many years a field of blood[346].
In one of these battles Stephen was taken, and Maud was universally
acknowledged; but her insufferable haughtiness, her inflexible severity
to her captive, and her haughty refusal of the city of London’s request,
to mitigate her father’s laws, and restore the Saxon, so alienated
the people from her, that she was forced to fly from London, and arms
were again taken up for Stephen. Her brother, who was the soul of her
cause, being soon after taken prisoner, was exchanged for Stephen,
and he dying soon after, Maud was forced to leave the kingdom to her
competitor. However, Stephen continuing still embroiled with the clergy,
her son Henry, in a few years after, invaded England, and was joined by
multitudes; but some noblemen, who loved their country, mediated a peace,
and at last established it on the following terms; that Stephen should
reign during life; that Henry should succeed him, and receive hostages at
the present for the delivery of the king’s castles to him on Stephen’s
death; and that, in the interim, he should be consulted with on all the
great affairs of the kingdom; and this agreement was ratified by the
oaths of all the nobility of both sides. In this treaty no mention was
made of Maud’s title, though she was living[347].
LECTURE XXXI.
_Henry II. succeeds to the crown—The reformation
of abuses—Alterations introduced into the English
Law—The commutation of services into money—Escuage or
Scutage—Reliefs—Assizes of novel disseisin, and other assizes._
Upon Stephen’s death, Henry the Second succeeded, according to the
settlement of the crown before made, and came to the possession of the
kingdom with greater advantages than most kings ever did. He was in the
flower of youth, had an agreeable person, and had already given the most
convincing proofs both of wisdom and valour. He was by far the most
powerful prince of his time: For, besides England, which when united
to its king in affection, was, by the greatness of its royal demesnes,
and the number of knights fees, incomparably the mightiest state in
Europe, in proportion to its extent; he had in France, where he was but
a vassal, greater territories than the king of France himself. In him
were united three great fees, to each of which belonged several great
dependancies; Anjou, which came from his father; Normandy from his
mother, and Guienne by his wife. And, from the very first steps he took
on coming to the throne, his subjects had good foundation to hope that
this great power would be principally exerted to make them happy. The
whole reign of Stephen, until the last pacification, had been a scene of
dismal confusion, in which every lord of a castle tyrannized at pleasure,
during the competition for the crown; and though, from the time of the
settlement of peace, Stephen published edicts to restrain violence and
rapine, and made a progress through the kingdom, in order to re-establish
justice and order, he lived not long enough to see his good intentions
answered, but left the work to be accomplished by his successor.
The first thing Henry did was to discharge a multitude of foreigners,
whom Stephen kept in arms during his whole reign. His next care was the
reformation of the coin, which had been greatly debased. He coined money
of the due weight and fineness, and then cried down the adulterated
which had, in the late reign, been counterfeited by the Jews, and the
many petty tyrants in their castles. These to humble, and make amesnable
to law, was his next concern. As to the castles in private hands, that
had been erected in his grandfather’s time, or before, he meddled not
with them; but all that had been built during Stephen’s reign, either by
permission or connivance, through the weakness of that prince, which were
the great nuisances, he issued a proclamation for demolishing, except
some few, which, from their convenient situation, he chose to keep in
his own hands, for the defence of the realm. And, lastly, as the crown
had been greatly impoverished by the alienations Stephen had, through
necessity, been forced to make, he issued another, to renounce all the
antient demesnes that had been so alienated, that he might be enabled to
support his dignity without loading his people, except on extraordinary
occasions[348].
These reformations, however just in themselves, or agreeable to the
subject, he did not proceed on merely by his own authority. He had
deliberated with the nobles, who attended at his coronation, concerning
them, and had their approbation; and though there were no acts of
parliament made at that time, yet, as form in those days was less minded
than substance, these edicts had the obedience of laws immediately paid
them by all, except some mutinous noblemen, who still held their castles
in a state of defence. Having taken these prudent steps, he formed his
privy council of the best and wisest men of the nation, and by their
advice summoned a regular parliament, wherein many good regulations were
made. The laws of the Confessor, as amended by Henry the First, were
re-established, and every thing, both in church and state, settled on the
footing they were in the time of that king. Being thus armed with a full
parliamentary authority, he marched against his mutinous nobles, whom he
soon brought to submit; and demolished their castles.
In another parliament, in order to settle the succession, contests about
which had had fatal effects ever since the death of the Conqueror, he
prevailed on his subjects to take the oath of allegiance, to his two
sons, though both in their infancy, first to William, then, to Henry,
as his successors. And having taken all these wise and just measures,
for the peace and security of his kingdom, he repaired to his foreign
dominions; but his transactions there, or even at home, that do not
relate to the laws or constitution, are not within the compass of the
design of these lectures. Let it suffice to say, that he made as good
laws for, and was as good a sovereign to, his French as his English
subjects.
In his reign many were the alterations introduced into the English law,
most of them, no doubt, by act of parliament, though the records of them
are lost. For, in the beginning of his reign, as I observed, he enacted
in parliament the laws of Henry the First; and yet from the book of
Glanville, written in the latter end of his reign, it is plain there were
great changes, and the law was very much brought back to what it was in
the Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I
mean reliefs, the law of which I shall mention hereafter. Many likewise
were the regulations he introduced of his own authority, which in the
event proved very beneficial to his subjects.
The first I shall take notice of was his commutation of the services due
of his tenants in demesne, which formerly were paid in provisions and
other necessaries, into a certain sum of money, adequate to the then
usual price. His grandfather Henry did somewhat of this kind, but he it
was that established and fixed it; and his example was followed by his
lords, so that, from this time, rents became generally paid in certain
yearly sums of money, instead of corn and provisions. What advantage the
successors of these socage tenants gained thereby will be evident, if we
consider the price of things at or about that time. In the reign of Henry
the First, we are told, the current price of several commodities, which,
however, must be trebled when reduced to the money of our standard, were
as follows: That of a fat ox five shillings, of our money fifteen; a
wether four-pence, of ours, a shilling; wheat to serve an hundred men
with bread for one meal, a shilling, of ours, three shillings; a ration
for twenty horses for a day, four-pence, of our money a shilling. And
although we should allow that, in Henry the Second’s time, the prices
of things were even doubled, which is impossible to be admitted, it
is easy to see how greatly the future socage tenants paying the same
nominal rent, the value of which was daily decreasing, rose in wealth and
importance. Besides, they were greatly eased in point of the expence and
trouble of carrying the provisions to the king’s court, to which before
they were obliged, wherever he resided in England; whereas, now, they had
only to carry, or send by a proper messenger, the money to be accepted as
an equivalent[349].
His military tenants he eased in a much more considerable manner. By the
law of the Conqueror, every military man was obliged to serve at his own
expence forty days as well abroad, where the king’s occasions required,
as in England, and in person too, unless notoriously incapable; in
which case they were obliged to find each a deputy, and if they failed
herein, by the strictness of the feudal law, they forfeited their lands,
or rather, as the law was used in England, compounded at the king’s
pleasure; which, if he was very avaricious, came pretty near the same
thing. This was a miserable heavy grievance. For what oppression must it
be for a knight of Northumberland, who had, perhaps, but a single fee,
to transport himself, it may be, to Guienne, to serve forty days, and
then return? Nay, it was inconvenient to the king himself; for as France,
where the scene of the king of England’s wars generally lay, was every
where full of fortifications, it was scarce possible to finish a war in
forty days, however great the humour of that age was for pitched battles;
the consequence of which was, that, after that time, the king was ever in
danger of being left in the midst of a campaign, with an inferior army.
Henry then, sensible of these inconveniencies, both to himself and his
subjects, devised _escuage_, or _scutage_, in the fourth year of his
reign, upon account of his war with Toulouse upon which his wife had
some pretensions. He, knowing that this war required but a small part
of his force, did, both in Normandy and England, publish, that such of
his military tenants as would before-hand pay a certain sum of money,
should be excused from serving, either in person or by deputy; and this
sum, which was rated by him extremely moderately, and was, therefore,
generally paid by his vassals, rather than serve in so remote a place,
he employed in hiring mercenary soldiers of fortune, of whom there was
plenty on the continent; and those, by their engagement, were obliged to
serve during the continuance of the war[350].
That his sole view, in this new project, was the ease of his people,
and the better prosecution of his wars, and not the depressing the
military spirit of his subjects, appears from hence; that those who were
qualified, and chose to serve in person, he caressed, and encouraged
by all means possible; that he never brought a single mercenary into
England, when he had wars with Wales or Scotland, but insisted on his
subjects personal service; nay, that he never kept those mercenaries on
foot in his foreign dominions, but dismissed them as soon as the war was
at an end. And this of _scutage_ was the general method he followed in
his subsequent wars in France and Ireland. What wonder is it then, that
this prince was universally beloved by his people of all ranks? though,
as the best institutions are liable to be corrupted, this very scutage,
that he devised for public ease, was turned into an heavy engine of
oppression by his son John.
Another alteration in the law in the reign of this king, was the point
_of reliefs_, as I mentioned before. The old relief of William the
First, which was restored by Henry the First, was certain, to all lords
and knights, according to their degrees, and was paid in horses and
arms; but now the humour of the times being that every thing should be
paid in money, the relief of a knight’s fee was settled at one hundred
shillings, the fourth part of its then computed yearly value, and which
I suppose was about the price of the armour, a knight was before to
pay; and henceforward the arms of the deceased descended to the heir,
and consequently the coats of arms blazoned thereon became hereditary.
But the reliefs of barons, or earls, were not settled at this time, but
remained arbitrary, as Glanville informs us. _De baroniis & comitatibus
nihil certum est statutum, quia juxta voluntatem et misericordiam
domini regis solent baroniæ capitales de releviis suis domino regi
satisfacere[351]._
From the word _statutum_ I take it for granted this change of reliefs
into money was by act of parliament. Indeed, how could it be otherwise;
but, then, the most surprising circumstance is, that the great lords,
who, in that age principally composed the parliament, should take care
in this material point, of the knights, the lower military tenants, and
leave themselves at the mercy of the crown. I shall venture on conjecture
to assign the reason. The Conqueror settled the reliefs of earls and
barons at a certainty, because he had fixed the number of knights fees
they should contain; twenty to an earldom, and thirteen and two-thirds
to a barony; but by the time of Henry the Second, the number of knights
fees contained in them might be greater or less. For instance, if an earl
died, and left two daughters, his twenty fees would be divided equally
between them; but the dignity was to go to the husband of that daughter
the king chose. Now it would be hard that he should pay for ten knights
fees, merely because he had the same title, as much as the predecessor
paid for twenty. Again, in the new created honours, it seems very
probable, from many circumstances, that an earldom might be erected but
with fifteen knights fees, or, perhaps, with twenty-five. The certainty
of the _quantum_ of land an earldom or barony should consist of not
being settled, I imagine, was the reason that the _quantum_ of relief
was not expressly determined, though, by fixing that of a knight’s fee,
the reasonable relief might, in any case be easily determined. And that
Henry, and his son Richard exercised that discretion the law left in them
in this equitable manner, we may infer from there being no complaints,
as to reliefs, from the earls or barons, during their reigns; but John
revived the arbitrary relief of William Rufus, to the great oppression of
his nobles, until he was restrained by _Magna Charta_.
To no other reign than this, I think, can be ascribed, so properly, the
invention of _assizes of novel disseisin_, and the other _assizes_,
for obtaining possession of lands. By the strictness of the very
antient feudal law, if a man had been disseized, that is, turned out
of possession, if he did not enter, and regain his possession, or, at
least, claim it within a year and a day, he lost all right; for, if he
was a socage tenant, the possessor had, within that time, paid a rent to
his lord, and been by him, who was supposed the best judge, allowed to
be the rightful tenant; and, if he was a military one, it was probable,
in those ages of perpetual war, he had actually served, at least he had
kept himself in constant readiness if called upon. But the limitation of
a year and day being soon found too short, it was after extended to five
years; then, to the time of the possession of the disseizor himself,
namely till he had either died or aliened it. But upon the alienée, or
heir of the disseizor, he could not enter, because they came in honestly,
by a fair title, and were guilty of no wrong. However, this antient
law, that gave no remedy but by entry, during the seizor’s possession,
was still too severe; for the _disseizor_ might alien, or die suddenly,
before the _disseizee_ could enter, or he might hold the possession _manu
forti_, so that the disseizee might not be strong enough to enter and
recover his possession[352].
To remedy these evils, and to prevent bloodshed, the law provided for
the disseizee his right of action, either against the disseizor himself,
or his heir or assigns, and, in which, upon shewing his right to the
land, he should be restored to his possession by the king’s officer,
the sheriff, with the _posse_ of the county. But still this action was
hitherto but the _writ of right_, which meddled not with the unlawful
possession, only with the absolute right to the land, and this action,
if brought in the _curia regis_, where only impartial justice could
be expected; was very dilatory. It was dangerous also, as the tenant
in possession might offer battle. In this reign, then, were these
_possessory actions_ introduced, for the determining the point of
possession, leaving the right of propriety as it was. It was advantageous
likewise to the subject, both disseizor and disseizee, as it gave him
two trials for his lands; for the writ of right when once determined was
final and conclusive[353].
This distinction between the _right of possession_, and the _right of
propriety_ was borrowed from the civil law, which was first introduced
in the late reign, and was now, and for some time forward, studied with
great assiduity by the English, as appears from the many long transcripts
from it to be found in the books of our antient lawyers. There they found
the distinction of _actions possessory_ and _petitory_; _possessory_
when a man had been notoriously in possession, and reputed the owner,
and was put out by another of his own authority. The public peace was
concerned to protect the possession of the reputed owner, and not to
let him suffer the loss thereof while he was suing his petitory action,
that is on the mere right, which the other undoubtedly would delay, by
all the arts and shifts he could invent. The proceedings, therefore, in
possessory actions were summary and expeditious; for they only regarded
the possession, and did not determine the absolute right: so there was no
conclusive wrong done to either party, let the matter of possession be
decided how it would; for he that failed might bring his petitory action
for the right.
An _assize_ in our law was a very summary action. Bracton, who lived an
hundred years after, calls it _novum & festinum remedium_, and indeed
so _festinum_ was it, that, in its proceedings, it seems to depart from
the general rules of reason and all laws. For it is a maxim of all laws,
except in some few very extraordinary cases, that no proofs are to be
taken till an _issue_ is _joined_, as our law calls it, or till there is
a _contest_, as the civil law expresseth it; that is, till it is settled
what is the matter to be proved, or till there is something affirmed on
one side, and denied on the other, upon which the merits of the cause
turn. If there be no disagreement about _facts_, but the question is mere
_matter of law_, the judges, who are best acquainted therewith, are, by
our law to determine. If the question be matters of fact, or facts mixed
with law, the jury, assisted with the judges, are to determine; though
if they doubt about the point of law, they may find the facts specially,
and leave the law arising thereon to the judges, which is what we call a
_special verdict_. No jury, therefore, ought to have been summoned till
the defendant appeared, and issue was joined, so that it was known what
was the matter to be tried; and this is the general rule. But, for the
speedy settling and quitting possessions, the assize is an exception
thereto, as appears from the _writ of assize_ directed to the sheriff.
For, besides giving notice to the defendant, or _tenant_, as he is called
in this action (because he is in possession) the sheriff is immediately
to summon a jury or assize, as it is called upon this occasion, who shall
directly go to the place, and make themselves judges, by their view,
of the nature, quality, and quantity of the land, or thing demanded,
and inform themselves, by all the ways they best may, of the former
possession of the demandant, and how he came to lose it. They are then
to appear the same day with the demandant and tenant, and, when issue
is joined between them, are to determine the matter according to their
own prior knowledge, and the evidence then given before them. I observed
that this action is not final. A brings an assize against B. If judgment
be given for A, B may bring his _writ of right_, if he has the right of
propriety, and recover, and so _e contra_. But though B cannot deny his
disseizing A, he may still defend himself. The words of the writ are
_injuste, & sine judicio, disseizivit_. He may therefore shew that he
disseized A, justly, that is, that he had a right of entry. As, suppose
B was first in possession, A disseizes him; then B, as he lawfully may,
disseizes A, A shall not recover. But if B had been in possession, and
A’s father had disseized him, and died, so that the land has come to A,
who is innocent, B, not entering in the father’s life-time, has lost
his right of possession. It is so in A. Now if B disseizes A, the son,
though he had ever so good a right to the land, A shall recover the
possession; for B had no right to enter, though he had a right to recover
the possession he was deprived of by A’s father, by bringing an action.
Wherever a man comes innocently to a possession, the law will defend that
possession, until it is proved that he hath no good right to it[354].
LECTURE XXXII.
_The institution of Judges itinerant, or Justices in Eyre—The
advantages attending it—The jurisdiction of these Judges—Their
circuits—The present form of transacting the county
business—The division of the Curia Regis into four courts—The
jurisdiction of the court of King’s Bench._