FEUDAL GRIEVANCES AND MAGNA CARTA.
I. The Immediate Causes of the Crisis.
Many attempts have been made to explain why the storm, long brewing,
broke at last in 1214, and culminated precisely in June of the following
year. Sir William Blackstone[60] shows how carefully historians have
sought for some one specific feature or event, occurring in these years,
of such moment as by itself to account for the rebellion crowned for the
moment with success at Runnymede. Thus Matthew Paris, he tells us,
attributes the whole movement to the sudden discovery of Henry I.’s
charter, long forgotten as he supposes, while other chroniclers agree in
assigning John’s inordinate debauchery as the cause of the civil
dissensions, dwelling on his personal misdeeds, real and imaginary.
“Sordida foedatur foedante Johanne, gehenna.”[61] Blackstone himself
suggests a third event, the appointment as Regent in John’s absence of
the hated alien and upstart, Peter des Roches, and his misconduct in
that office.
-----
Footnote 60:
_The Great Charter_, p. vii.
-----
There is absolutely no necessity to seek in such trivial causes the
explanation of a great movement, really inevitable, the antecedents of
which were deeply rooted in the past. The very success of Henry
Plantagenet in performing the great task of restoring order in England,
for effecting which special powers had been allowed to him, made the
continuance of these powers to his successors unnecessary. From the day
of Henry’s death, if not earlier, forces were at work which only
required to be combined in order to control the licence of the Crown.
When the battle of order had been finally won—the complete overthrow of
the rebellion of 1173 may be taken as a crucial date in this
connection—the battle of liberty had, almost necessarily, to be begun.
The clamant problem of the hour was no longer how to prop up the
weakness of the Crown; but rather how to place restrictions on its
unbridled strength.
-----
Footnote 61:
Several of the most often-repeated charges of personal wrongs
inflicted by King John upon the wives and daughters of his barons have
been in recent years refuted. See Miss Norgate, _John Lackland_, p.
289.
-----
We need not wonder that the crisis came at last, but rather why it was
so long delayed. Events, however, were not ripe for rebellion before
John’s accession, and a favourable occasion did not occur previous to
1215. The doctrine of momentum accounts in politics for the long
continuance of old institutions in a condition even of unstable
equilibrium; an entirely rotten system of government may remain for ages
until at the destined moment comes the final shock. John conferred a
great boon on future generations, when by his arrogance and by his
misfortunes he combined against him all classes and interests in the
community.
The chief factor in the coalition which ultimately triumphed over John
was undoubtedly the baronial party led by those strenuous nobles of the
north, who were, beyond doubt, goaded into active opposition by their
own personal and class wrongs, not by any altruistic promptings to
sacrifice themselves for the common good. Their complaints, too, as they
appear reflected in the imperishable record of Magna Carta, are mainly
grounded on breaches of the technical rules of feudal usage, not upon
the broad basis of constitutional principle.
The feudal grievances most bitterly resented may be ranged under one or
other of two heads—increase in the weight of feudal obligations and
infringement, of feudal jurisdictions. The Crown, while it exacted from
its tenants the fullest measure of services legally exigible, interfered
persistently at the same time with those rights and privileges which had
originally balanced the obligations. The barons were compelled to give
more, while they received less.
With the first group of baronial grievances posterity can sympathize in
a whole-hearted way, since the increase of feudal obligations inflicted
undoubted hardships on the Crown tenants, while the redress of these
involved no real danger to constitutional progress. One and all of the
grievances included in this first group could be condemned (as they were
condemned by various chapters of Magna Carta) without unduly reducing
the efficiency of the monarchy which still formed under John, as it had
done under William I., the sole source of security against the dangers
of feudal anarchy. Posterity, however, cannot equally sympathize with
the efforts of the barons to redress their second class of wrongs.
However great may have been the immediate hardships inflicted on members
of the aristocracy by the suppression of their feudal courts, lovers of
constitutional progress can only rejoice that all efforts to restore
them failed. Those clauses of Magna Carta which aimed at reversing the
great currents flowing towards royal justice, and away from private
baronial justice, produced no permanent effect, and posterity has had
reason to rejoice in their failure.
Each group of feudal grievances—those connected with the increase of
feudal obligations, and those connected with the curtailment of feudal
immunities—requires special and detailed treatment.[62] To each class a
double interest attaches, since the resentment aroused by both formed so
vital an element in the spread of that spirit of determined resistance
to King John, which led to the winning of Magna Carta, and since,
further, an intimate knowledge of the exact nature of these grievances
throws a flood of light on many otherwise obscure clauses of the Great
Charter, and enables us to estimate how far the promised remedies were
ultimately carried into practice in later reigns.
-----
Footnote 62:
See _infra_ the two sections (II. and III.) immediately following.
-----
The grievances of the barons, many and varied as they were, were not,
however, the only wrongs calling for redress. It is probable that the
baronial party, if they had acted in isolation from the other estates of
the realm, would have failed in 1215 as they had already failed in 1173.
If the Crown had retained the active sympathy of Church and common
people, John might have successfully defied the baronage as his father
had done before him. He had, on the contrary, alienated from the
monarchy all estates and interests, and had broadened the basis of
opposition to the throne by ill-treating the mercantile classes and the
peasantry who, from the reign of William I. to that of Henry II., had
remained the fast, if humble, friends of the Crown. The order-loving
tradesmen of the towns had been previously willing to purchase
protection from Henry at the price of heavy, even crushing taxation; but
when John continued to exact the price, and yet failed to furnish good
government in return, his hold on the nation was completely lost. So far
from protecting the humble from oppression, he was himself the chief
central oppressor, and he let loose, besides, his foreign officers and
favourites as petty local oppressors in all the numerous offices of
sheriff, castellan, and bailiff. Far from using the perfected machinery
of Exchequer, Curia, and local administration in the interests of good
government, John valued them merely as instruments of extortion and
outrage—as ministers to his lust and greed.
The lower orders were by no means exempt from the increased taxation
which proved so galling to the feudal tenants. When John, during his
quarrel with Rome, repaid each new anathema of the Pope by fresh acts of
spoliation against the national Church, the sufferings of the clergy
were shared by the poor. In confiscating the goods of the monasteries,
he destroyed the chief provision for poor-relief known to the thirteenth
century. The alienation of the affections of the great masses of
lower-class Englishmen thus effected was never wholly undone, even by
the reconciliation of John with the Pope. Notwithstanding the
completeness and even abjectness of John’s surrender to Rome, he took no
special pains to reinstate himself in the good graces of the Church at
home. Innocent, secure at the Lateran, had issued his thunderbolts; and
John’s counter-strokes had fallen, not on him, but on the English
clergy—from the prelate to the parish priest, from the abbot to the
humblest monk. The measures taken, in 1213 and afterwards, to make good
to these victims some part of the heavy losses sustained, were quite
inadequate. The interests of the Church universal were often widely
different from those of the national Church, and such diversity was
never more clearly marked than in the last years of the reign of John.
After 1213, John’s alliance with Rome brought new dangers in its train.
The united action of two tyrants, each claiming supreme powers, lay and
spiritual respectively, threatened to exterminate the freedom of the
English nation and the English Church. “The country saw that the
submission of John to Innocent placed its liberty, temporally and
spiritually, at his mercy; and immediately demanded safeguards.”[63]
-----
Footnote 63:
Stubbs, _Select Charters_, 270.
-----
This union of tyrants naturally led to another union which checkmated
it, for the baronial opposition allied itself with the ecclesiastical
opposition. The urgency of their common need thus brought prelates and
barons into line—for the moment. The necessary leader was found in
Stephen Langton, who succeeded in preventing the somewhat divergent
interests of the two estates from leading them in opposite directions.
All things were thus ripe for rebellion, and even for _united_
rebellion; an opportunity only was required. Such an opportunity came in
a tempting form in 1214; for the King had then lost prestige and power
by his failure in the wars with France. He had lost the confidence of
his subjects by his quarrel with Rome, and he failed to regain it by his
reconciliation. He had lost the friendship of the national Church. His
unpopularity and vacillating nature had been thoroughly demonstrated.
Finally he had himself, in 1191, when plotting against his absent
brother Richard, successfully attacked and ousted the Regent Longchamp
from office, thus furnishing an example of rebellion, and of
successfully concerted action against the central government.
The result was that, when the barons—the wildest spirits of the northern
counties taking always the lead—began active operations at a juncture of
John’s fortunes most favourable to their aspirations, not only had they
no opposition to dread from churchman or merchant, from yeoman or
peasant, but they might count on the sympathy of all and the active
co-operation of many. Further, John’s policy of misrule had combined
against him two interests usually opposed to each other, the party of
progress and the party of reaction. The influence of each of these may
be clearly read in the various chapters of Magna Carta.
The progressive party consisted mainly of the heads of the more recently
created baronial houses, men trained in the administrative methods of
Henry II., who desired merely that the system of government they knew
should be properly enforced and carried out to its logical conclusions.
They demanded chiefly that the King should conduct the business of the
Exchequer and Curia according to the rules laid down by Henry II.
Routine and order under the new system were what this party desired, and
not a return to the unruly days of Stephen. Many of the innovations of
the great Angevin had now been loyally and finally accepted by all
classes of the nation; and these accordingly found a permanent
resting-place in the provisions of the Great Charter. In temporary
co-operation with this party, the usually rival party of reaction was
willing to act for the moment against the common enemy. There still
existed in John’s reign magnates of the old feudal school, who hoped to
wrest from the weakened hand of the King some measure of feudal
independence. They had indeed accepted such reforms as suited them, but
still bitterly opposed many others. In particular, they resisted the
encroachments of the royal courts of law which were gradually
superseding their private jurisdictions. For the moment, John’s crafty
policy, so well devised to gain immediate ends, and so unwise in the
light of subsequent history, combined these two streams, usually ready
to thwart each other, into a united opposition to his throne. Attacked
at the same moment by the votaries of traditional usage and by the
votaries of reform, by the barons, the trading classes, and the clergy,
no course was left him but to surrender at discretion. The movement
which culminated at Runnymede may thus best be understood as the
resultant of a number of different but converging forces, some of which
were progressive and some reactionary.
II. The Crown and Feudal Obligations.
Among the many evils calling loudly for redress in England at the
commencement of the thirteenth century, none spoke with more insistent
voice than those connected with feudal abuses. The objection of the
northern barons to pay the scutage demanded on 26th May, 1214, was the
spark that fired the mine. The most prominent feature of the Charter is
the solicitude everywhere displayed to define the exact extent of feudal
services and dues, and to prevent these from being arbitrarily
increased. A somewhat detailed knowledge of feudalism and feudal
obligations forms a necessary preliminary to any exact study of Magna
Carta.
The precise relations of the Norman Conquest to the growth of feudalism
in England are complicated, and have formed the subject of much
controversy. The view now generally accepted, and with reason, is that
the policy of William the Conqueror accelerated the process in one
direction, but retarded it in another. Feudalism, regarded as a system
of government, had its worst tendencies checked, if not eradicated, by
the great upheaval that followed the coming of Duke William; feudalism,
considered as a system of land tenure, and as a social system, was, on
the contrary, formulated and developed. It is mainly as a system of land
tenure that it falls here to be considered. Originally, the relationship
between lord and tenant, dependent upon the double ownership of land (of
which each was, in a different sense, the proprietor), implied
obligations on both sides. The lord gave protection, while the tenant
owed services of various sorts. It so happened, however, that, with the
changes wrought by time, the legal obligations of the lord ceased to be
of much importance, while those of the vassal became more and more
burdensome. The tenant’s obligations varied in kind and in extent with
the nature of the tenure. It is difficult to frame an exact list of the
various tenures formerly recognized as distinct in English law: partly
because the classical authors of different epochs, from Bracton to
Blackstone, contradict each other; and partly because of the obscurity
of the process by which these tenures were gradually differentiated. The
word “tenure” originally meant “a holding” of any sort. Sir William
Blackstone,[64] after explaining the dependent nature of all real
property in England, thus proceeds: “The thing holden is therefore
styled a _tenement_, the possessors thereof _tenants_, and the manner of
their possession a _tenure_.” Tenure thus comes to mean the conditions
on which a tenant holds real estate under his lord, and the number of
tenures varies with the number of accepted types.
-----
Footnote 64:
_Commentaries_, II. 59.
-----
The ancient classification differs materially from that in use at the
present day. The modern English lawyer (unless of an antiquarian turn of
mind) concerns himself only with three tenures: freehold (now
practically identical with socage), copyhold and leasehold. The two
last-mentioned may be rapidly dismissed, as they were of little
importance in the eyes of Littleton, or of Coke: leasehold embraces only
temporary interests, such as those of a tenant-at-will or for a limited
term of years; while copyhold is the modern form of tenure into which
the old unfree villeinage has slowly ripened. The ancient writers were,
on the contrary, chiefly concerned with holdings both permanent and free
(as opposed to leaseholds on the one hand and villeinage on the other).
Of such free tenures seven at least may be distinguished in the
thirteenth century, all of which have now come to be represented by the
same one of the three recognized modern tenures, namely, freehold or
socage. The free holdings existing in medieval England may be ranged
under the following heads, viz.: knight’s service, free socage,
fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.
(1) _Knight’s Service._ Medieval feudalism had many aspects; it was
almost as essentially an engine of war as it was a system of
land-holding. The normal return for which an estate was granted
consisted of the service in the field of a specific number of knights.
Thus the normal feudal holding was known as knight’s service, or tenure
in chivalry—the conditions of which must be constantly kept in view,
since by these rules the relations between John and his recalcitrant
vassals fell to be determined. When finally abolished at the
Restoration, there fell with knight’s service, it is not too much to
say, the feudal system of land tenure in England. “Tenure by barony” is
sometimes spoken of as a separate species, but may be more correctly
viewed as a variety of tenure in chivalry.[65]
-----
Footnote 65:
See Pollock and Maitland, _History of English Law_, I. 218.
-----
(2) _Free Socage._ The early history of socage, with its division into
ordinary and privileged, is involved in obscurities which do not require
to be unravelled for the purpose at present on hand. The services which
had to be returned for both varieties were not military but
agricultural, and their exact nature, and amount varied considerably.
Although not so honourable as chivalry, free socage was less burdensome
in respect that two of the most irksome of the feudal incidents,
wardship and marriage, did not apply. When knight’s service was
abolished those who had previously held their lands by it, whether under
the Crown or under a mesne lord, were henceforward to hold in free
socage, which thus came to be the normal holding throughout England
after the Restoration.[66]
-----
Footnote 66:
See Statute 12 Charles II. c. 24.
-----
(3) _Fee-farm_ was the name applied to lands held in return for services
which were neither military nor agricultural, but consisted only of an
annual payment in money. The “farm” thus indicates the rent paid, which
apparently might vary without limit, although it was long maintained
that a fee-farm rent must amount at least to one quarter of the annual
value. This error seems to have been founded on a misconstruction of the
Statute of Gloucester.[67] Some authorities[68] reject the claims of
fee-farm to rank as a tenure separate from socage; although chapter 37
of Magna Carta seems to recognize the distinction.
-----
Footnote 67:
See Pollock and Maitland, I. 274, n.
Footnote 68:
Pollock and Maitland, I. 218.
-----
(4) _Frankalmoin_ is the tenure by which pious founders granted lands to
the uses of a religious house. It was also the tenure on which the great
majority of glebe lands throughout England were held by the village
priests, the parsons of parish churches. The grant was usually declared
to have been made _in liberam eleemosinam_ or “free alms” (that is, as a
free gift for which no _temporal_ services were to be rendered).[69] In
Scots charters the return formally stipulated was _preces et lacrymae_
(the prayers and tears of the holy men of the foundation for the soul of
the founder).
-----
Footnote 69:
Littleton, II. viii. s. 133.
-----
(5) _Grand serjeanty_ was a highly honourable tenure sharing the
distinctions and the burdensome incidents of knight’s service, but
distinct in this, that the tenant, in place of ordinary military duties,
performed some specific office in the field, such as carrying the King’s
banner or lance, or else acted as his constable or marshal or other
household officer in the palace, or performed some important service at
the coronation.[70]
-----
Footnote 70:
Littleton, II. viii. s. 153.
-----
An often-quoted example of a serjeanty is that of Sir John Dymoke and
his family, who have acted as the Sovereign’s champions at successive
coronations from Richard II. to Queen Victoria, ready to defend the
Monarch’s title to the throne, if questioned, by battle in the ancient
form.
Grand serjeanties were liable to wardship and marriage, as well as to
relief, but not, as a rule, to payment of scutage.[71] William Aguilon,
we are told by Madox,[72] "was charged at the Exchequer with several
escuages. But when it was found by Inquest of twelve Knights of Surrey
that he did not hold his lands in that county by military tenure, but by
serjeanty of finding a Cook at the King’s coronation to dress victuals
in the King’s kitchen, he was acquitted of the escuages."
-----
Footnote 71:
Littleton, II. viii. s. 158.
Footnote 72:
_History of Exchequer_, I. 650, citing _Pipe Roll_ of 18 Henry III.
-----
(6) _Petty serjeanty_ may be described in the words of Littleton as
“where a man holds his lands of our lord the king to yield to him yearly
a bow or sword, or a dagger or a knife ... or to yield such other small
things belonging to war.”[73]
-----
Footnote 73:
See Littleton, II. ix. s. 159. With this may be compared the
definition given in chapter 37 of Magna Carta, where John speaks of
land thus held by a vassal as “quam tenet de nobis per servitium
reddendi nobis cultellos, vel sagittas vel hujusmodi.”
-----
The grant of lands on such privileged tenures was frequently made in
early days on account of the special favour entertained by the King for
the original grantee, due, it might be, to the memory of some great
service rendered at a critical juncture to the King’s person or
interests. A few illustrative examples may be cited from the spirited
description of a scholar whose accuracy can be relied upon. Serjeanties,
as Miss Bateson tells us, "were neither always military nor always
agricultural, but might approach very closely the service of knights or
the service of farmers.... The serjeanty of holding the King’s head when
he made a rough passage across the Channel, of pulling a rope when his
vessel landed, of counting his chessmen on Christmas Day, of bringing
fuel to his castle, of doing his carpentry, of finding his potherbs, of
forging his irons for his ploughs, of tending his garden, of nursing the
hounds gored and injured in the hunt, of serving as veterinary to his
sick falcons, such and many other might be the ceremonial or menial
services due from a given serjeanty."[74]
-----
Footnote 74:
_Mediaeval England_, pp. 249-250. A similar tenure still exists in
Scotland under the name of "blench"—a tenure wherein the reddendo is
elusory, viz., the annual rendering of such small things as an arrow
or a penny or a peppercorn, “if asked only” (_si petatur tantum_).
-----
In the days before legal definition had done its work, it must often
have been difficult to say on which side of the line separating Petty
Serjeanties from Grand Serjeanties any particular holding fell.
Gradually, however, important and practical distinctions were
established, making it necessary that the boundary should be defined
with accuracy. In particular, the rule was established that Petty
Serjeanties, while liable for relief, were exempt altogether from the
burdensome incidents of wardship and marriage, which Grand Serjeanties
shared with lands held by ordinary Barony or Knight’s service.[75] Thus
the way was prepared for the practical identification of the Petty
Serjeanties with ordinary socage at a later date.
-----
Footnote 75:
Littleton, II. viii. s. 158.
-----
(7) _Burgage_, confined exclusively to lands within free boroughs, is
mentioned as a separate tenure by Littleton,[76] and his authority
receives support from the words of chapter 37 of Magna Carta. Our
highest modern authorities,[77] however, consider that it never acquired
sufficiently distinct characteristics to warrant its acknowledgment as
such. They treat it rather as a special variety of socage, used where
the tenants were the members of a corporation. If their opinion must be
accepted for England, it follows that, from common antecedents, entirely
different results have developed in Scotland and in England
respectively. While, north of the Tweed, several of the well-established
English tenures have failed to make good their right to separate
recognition, burgage has established itself beyond a doubt. Even the
levelling process consummated by the Conveyancing (Scotland) Act of 1874
has not entirely abolished its separate existence.
-----
Footnote 76:
_Ibid._, II. x. s. 162.
Footnote 77:
Pollock and Maitland, I. 218.
-----
The explanation of such differences between English and Scottish usage
easily suggests itself. When feudalism first took root, the various
shades of distinction in the conditions of holding were exceedingly
numerous, and merged into one another by imperceptible degrees. The work
of definition came later, was essentially artificial in its nature, and
assumed different forms in different lands.[78]
-----
Footnote 78:
Littleton and Coke seem almost to countenance two additional tenures,
viz., tenure by scutage or escuage, and tenure by Castle-guard.
Pollock and Maitland consider both as alternative names for knight’s
service. (See I. 251 and I. 257.) The latter is discussed _infra_
under c. 29 of Magna Carta.
-----
These tenures, originally six or seven (according as we exclude or
include burgage), have yielded to the unifying pressure of many
centuries. Frankalmoin and Grand Serjeanty still exist, but rather as
ghosts than realities; the others have all been swallowed up in socage,
which has thus become practically identical with “free-hold.”[79] This
triumph of socage is the result of a long process. Fee-farm, burgage,
and petty serjeanty, always possessing many features in common, were
gradually assimilated in almost all respects, while a statute (12
Charles II. c. 24) transformed tenure in chivalry also into socage. The
once humble socage has thus risen high, and now embraces most of the
land of England.[80]
-----
Footnote 79:
Jenks, _Modern Land Law_, p. 14.
Footnote 80:
It has been well described by Pollock and Maitland (I. 294) as “the
great residuary tenure.” In Scotland the “residuary tenure” is not
socage but “feu” (resembling the English fee-farm). Holdings in feu
are still familiar to Scots lawyers. They are originated by a formal
charter, followed by registration (the modern equivalent of infeftment
or feudal investiture), thus preserving an unbroken connection with
the feudal conveyancing of the Middle Ages.
The interest of historians naturally centres round tenure by knight’s
service, which is the very kernel of the feudal system. Lack of
definition in the middle ages was a fruitful source of quarrel. For a
century and more after the Norman Conquest, the exact amount and nature
of the military services due by a tenant to his lord were left vague and
undetermined. The early Norman Kings had gradually superseded the old
Anglo-Saxon Crown tenants by new ones of Norman or French extraction,
without formulating any code of regulations for the future. The whole of
England had thus been carved into a number of estates—the larger known
as honours or baronies, and the smaller as manors. Each Crown tenant
(with two exceptions, of which the Conqueror’s favourite foundation of
Battle Abbey was one) held his lands on condition of furnishing a
certain number of fully armed and mounted soldiers, always ready to obey
the King’s summons in the event of war. High authorities differ as to
when and by whom the amount of each vassal’s service was fixed. The
common view (promulgated by Prof. Freeman[81] with his usual vehemence),
attributes the allocation of specific service to Ranulf Flambard, the
unscrupulous tool of William Rufus. Mr. J. H. Round[82] has recently
urged convincing reasons in support of the older view which attributes
it to William I. Two facts, apparently, are certain: that within half a
century from the Conquest each military tenant was burdened with a
definite amount of knight’s service; and, further, that no formal record
of the amount of such service was made at the time. There were, as yet,
no written charters, and thus the possibility of disputes remained.
Probably such grants would be made in full _Curia_, and the only record
of the conditions would lie in the memory of the Court itself.
-----
Footnote 81:
_Norman Conquest_, V. 377; _Hist. of William Rufus_, 335–7.
Footnote 82:
_Feudal England_, p. 228 _et seq._
Long before the date of Magna Carta, the various obligations had been
grouped into three classes, which may be arranged according to their
relative importance, as _services_, _incidents_, and _aids_. Under each
of these three heads, disputes continually arose between the lord who
exacted and the vassal who rendered them.[83]
-----
Footnote 83:
All three forms of feudal obligation—service, incidents, and aids—have
long been obsolete in England. The statute 12 Charles II. c. 24 swept
away the feudal _incidents_ along with the feudal system; centuries
before, _scutages_ in lieu of military _service_ had become obsolete
in the transition from the system of feudal finance to that of
national finance, effected by the Crown in the thirteenth and
fourteenth centuries. Feudal _aids_ were also long obsolete, although
James I., in desperate straits for money, had attempted to revive two
of them. In France the feudal system, with all its burdensome
obligations, remained in full vigour until it was abolished in one
night by the famous decree of the National Assembly of 4th August,
1790. In Scotland, the feudal system of land tenure still exists, and
certain of its incidents (_e.g._ reliefs and compositions or fines for
alienation) are exacted at the present day.
-----
The very essence of the feudal relation between the King as overlord and
the Crown tenant as vassal consisted in the liability of the latter to
render “suit and service,” that is, to follow his lord’s banner in time
of war, and to attend his court in time of peace. It will be more
convenient, however, to reserve full consideration of these services
until the comparatively uncomplicated obligations known as incidents and
aids have been first discussed.
I. _Feudal Incidents._ In addition to “suit and service,” the lord
reaped, at the expense of his tenants, a number of casual profits, which
thus formed irregular supplements to his revenue. These profits,
accruing, not annually, but on the occurrence of exceptional events,
came to be known as “feudal incidents.” They were gradually defined with
more or less accuracy, and their number may be given as six, viz.:
Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for
Alienation.[84]
-----
Footnote 84:
Blackstone, _Commentaries_, II. 63, however arranges these in a
different order, and mentions as a seventh incident “aids,” which are
here reserved for separate treatment.
(_a_) _Relief_ is easily explained. The fee, or _feudum_, or hereditary
feudal estate, seems to have been the result of a gradual evolution from
the old _beneficium_ (or estate held merely for one lifetime), and that
again from the older _precarium_ (or estate held only during the will of
the overlord). Grants of land, originally subject to revocation by the
lord, had gradually attained fixity of tenure throughout the life of the
original grantee; and, later on, they became transmissible to his
descendants. The hereditary principle at last completely triumphed; the
Capitulary of Kiersey (A.D. 877) is said to be the first authoritative
recognition of the heir’s absolute right to succeed. The process was a
gradual one, and it would seem that even after the Norman Conquest, this
rule of hereditary descent was not established beyond possibility of
dispute.[85] This right of the heir to succeed always remained subject
to one condition, namely, the payment of a sum of money known as
“relief.” This was theoretically an acknowledgment that the new tenant’s
right to ownership was incomplete, until recognized by his superior—a
reminiscence of the earlier _precarium_ from which the _feudum_ had
developed.
-----
Footnote 85:
See Pollock and Maitland, I. 296.
_Relief_, then, is the sum payable to a feudal overlord by an heir for
recognition of his title to succeed the last tenant in possession. The
amount remained long undefined, and the lord frequently asked exorbitant
sums.[86]
-----
Footnote 86:
See _infra_, under c.2, for the steps in the gradual process whereby
this evil was redressed.
-----
(_b_) _Escheat_, it has been said, "signifies the return of an estate to
a lord, either on failure of issue from the tenant or upon account of
such tenant’s felony."[87] This lucid description conveys a good general
conception of escheat; but it is inaccurate in at least two respects. It
does not exhaust the occasions on which escheat occurs, and it errs in
speaking of “the return” of an estate to a lord, when, more accurately,
that estate had never left him, but always remained his property,
subject only to a burden, which was now removed. In theory, the feudal
grant of lands was always conditional; and when the condition was
broken, the grant fell, and the lord found himself, automatically as it
were, once more the absolute unburdened proprietor, as he had been
before the grant was made. Thereafter, he held the land in demesne,
unless he chose to make a new grant to another tenant. The word
“escheat” was applied indifferently to the lord’s right to such
reversions, and to the actual lands which had thus reverted. In warlike
and unsettled times the right was a valuable one, for whole families
might become rapidly extinct. When the last tenant left no heir, it was
obvious that the original grant had exhausted itself. Similarly, when a
landholder was convicted of felony, his blood became, in the phrase of a
later day, attainted, and no one could succeed to any estate through
him. If a man failed in the ordeal of water provided by the Assize of
Clarendon in 1166 for those accused of heinous crimes, his estates also
escheated to his lord. It is true that a complication arose when it was
of treason that the tenant had been convicted. In that case the king, as
the injured party, had prior rights which excluded those of the lord.
The lands of traitors were forfeited to the Crown. Even in the case of
felony the king had a limited right to the lands during a period which
was strictly defined by Magna Carta.[88]
-----
Footnote 87:
R. Thomson, _Magna Charta_, p. 236.
Footnote 88:
_Infra_, c. 32.
-----
The tenant’s felony and failure of issue were the two main grounds of
escheat, but not the only ones; the goods of fugitives from justice and
of those who had been formally outlawed also escheated, and Glanvill
adds another case,[89] namely, female wards guilty of unchastity (an
offence which spoiled the king’s market). Failure to obey a summons to
the feudal levy in time of war might also be made a ground of
forfeiture.[90]
-----
Footnote 89:
VII. 17.
Footnote 90:
Madox, I. 663.
-----
Escheat was thus a peculiarly valuable right both to the Crown and to
mesne lords. Its effect was simply this: one link in the feudal chain
was struck out, and the links on either side were fitted together. If
the defaulter was a Crown tenant, all his former sub-tenants, whether
freeholders or villeins, moved up one rung in the feudal ladder and held
henceforward directly of the king, who enjoyed the entire complexus of
legal rights previously enjoyed by the defaulter in addition to those
previously enjoyed by himself: rents, crops, timber, casual profits, and
advowsons of churches falling vacant; jurisdictions and the profits of
jurisdictions; services of villeins; reliefs, wardships, and marriages
of freeholders as these became exigible.
The Crown, however, while taking everything the defaulter might have
taken before default, must take nothing more—so at least Magna Carta[91]
provides. The rights and status of innocent sub-tenants must not be
prejudiced by the misdeeds of their defaulting mesne lord.
-----
Footnote 91:
See _infra_, c. 43.
-----
(_c_) _Wardships_ are described in the _Dialogus de Scaccario_ as
“escheats along with the heir” (_escaeta cum herede_).[92] This
expression does not occur elsewhere, but it would be impossible to find
any description of wardship which throws more light on its nature and
consequences. When the heir of a deceased tenant was unfitted to bear
arms by reason of his tender years, the lands were practically, during
his minority, without an effective owner. The lord accordingly treated
them as temporarily escheated. During the interval of nonage, the lord
entered into possession, drew the revenues, and applied them to his own
purposes, subject only to the obligation of maintaining and training the
heir in a manner suited to his station in life. Frequently, considerable
sums were thus spent. The _Pipe Roll_ of the seventeenth year of Henry
II. shows how out of a total revenue of £50 6s. 8d. from the Honour of
“Belveeir,” £18 5s. had been expended on the children of the late
tenant.[93] Wardship came to an end with the full age of the ward, that
is, in the case of a military tenant, on the completion of his
twenty-first year, “in that of a holder in socage on the completion of
the fifteenth, and in the case of a burgess when the boy can count
money, measure cloth, and so forth.”[94] Wardship of females normally
ended at the age of fourteen, "because that a woman of such age may have
a husband able to do knight’s service."[95]
-----
Footnote 92:
See Hughes’ edition, p. 133.
Footnote 93:
See _Dialogus_, p. 222 (citing _Pipe Roll_, p. 27).
Footnote 94:
Glanvill, VII. c. 9. In socage and burgage tenures no incident of
wardship was recognized; the guardianship went to the relations of the
ward, and not to his feudal lord. Somewhat complicated, but
exceedingly equitable, rules applied to socage. The maternal kindred
had the custody, if the lands came from the father’s side; the
paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In
plain language, the boy and his property were entrusted to those who
had no interest in his death.
Footnote 95:
Littleton, II. iv. s. 103.
-----
All the remunerative consequences flowing from escheat flowed also from
wardship—rents, casual profits, advowsons, services of villeins, and
reliefs. Unlike escheats, however, the right of the Crown here was only
temporary, and Magna Carta sought[96] to provide that the implied
conditions should be respected by the Crown’s bailiffs or nominees. The
lands must not be wasted or exhausted, but restored to the young owner
when he came of age in as good condition as they had been at the
commencement of the wardship.
-----
Footnote 96:
See under c. 5.
-----
One important aspect of this right ought to be specially emphasized. The
Crown’s wardship affected bishoprics as well as lay baronies, extending
over the temporalities of a See between the death of one prelate and the
instalment of his successor. Thus, it was to the king’s interest to
place obstacles in the way of all appointments to vacant sees, since the
longer the delay, the longer the Exchequer drew the revenues and casual
profits.[97]
-----
Footnote 97:
What these were may be read in the _Pipe Rolls_, _e.g._, in that of 14
Henry II., when the Bishopric of Lincoln was vacant.
This right was carefully reserved to the Crown, even in the very
comprehensive charter in which John granted freedom of election, dated
21st November, 1214.[98]
-----
Footnote 98:
See _Statutes of the Realm, Ch. of Liberties_, p. 5, and _Sel.
Charters_, p. 288: “Salva nobis et haeredibus nostris custodia
ecclesiarum et monasteriorum vacantium quae ad nos pertinent.”
Contrast the terms of Stephen’s Oxford Charter; _Sel. Charters_, pp.
120-1.
-----
(_d_) _Marriage_ as a feudal incident belonging to the lord is difficult
to define generally, since its meaning changed. Originally it seems to
have implied little more than the right of a lord to forbid an heiress,
holding a fief under him, to marry a personal enemy, or some one
otherwise unsuitable. Such veto was only reasonable, since the husband
of the heiress would become the owner of the fee and the tenant of the
lord. This negative right had almost necessarily a positive side; the
claim to concur in the choice of a husband gradually expanded into an
absolute right of the lord to dispose by sale or otherwise of the lands
and person of his female ward. The prize might go as a bribe to any
unscrupulous gentleman of fortune who placed his sword at the King’s
disposal, or it might be made the subject of auction to the highest
bidder. The lady passed as a mere adjunct to her own estates, and
ceased, strictly speaking, to have any voice in choosing a partner for
life. She might protect herself indeed against an obnoxious husband by
out-bidding her various suitors. Large sums were frequently paid for
leave to marry a specified individual or to remain single.
This right seems, at some uncertain date, to have been extended from
females to males, and instances of sums thus paid occur in the _Pipe
Rolls_. It is difficult at first sight to imagine how the Crown found a
market for such wares as male wards; but probably wealthy fathers were
ready to purchase desirable husbands for their daughters. Thus in 1206 a
certain Henry of Redeman paid forty marks for the hand and lands of the
heir of Roger of Hedon, “_ad opus filiae suae_,”[99] while Thomas Basset
secured a prize in the person of the young heir of Walerand, Earl of
Warwick, to the use of any one of his daughters.[100] This extension to
male heirs is usually explained to have been founded on a strained
construction of chapter 6 of Magna Carta, but the beginnings of the
practice can be traced much earlier than 1215.[101] The lords’ right to
sell their wards was recognized and defined by the Statute of Merton,
chapter 6. The attempts made to remedy some of the most serious abuses
of the practice may be read in Magna Carta.[102]
-----
Footnote 99:
_Rotuli de oblatis et finibus_, p. 354.
Footnote 100:
_Rot. Claus._, pp. 37, 55.
Footnote 101:
Pollock and Maitland, I. 305.
Footnote 102:
See _infra_, under chapters 6, 7, and 8.
-----
Mr. Hallam[103] considers that “the rights, or feudal incidents, of
wardship and marriage were nearly peculiar to England and Normandy,” and
that the French kings[104] never “turned this attribute of sovereignty
into a means of revenue.”
-----
Footnote 103:
_Middle Ages_, II. 429.
Footnote 104:
p. 437.
-----
(_e_) _Primer Seisin_, which is usually regarded as a separate incident,
and figures as such in Blackstone’s list, is perhaps better understood,
not as an incident at all, but rather as a special procedure—effective
and summary—whereby the Crown could enforce the four incidents already
described. It was an exclusive prerogative of the Crown, denied to mesne
lords.[105] When a Crown tenant died, the King’s officers had the right
to enter upon immediate possession, and to exclude the heir, who could
not touch his father’s lands without specific permission from the Crown.
He had first to prove his title by inquest, to give security for any
balance of relief and other debts unpaid, and to perform homage.[106] It
will be readily seen what a strong strategic position all this assured
to the King in any disputes with the heir of a dead vassal. If the
Exchequer had doubtful claims against the deceased, its officials could
satisfy themselves before admitting the heir to possession. If the heir
showed any tendency to evade payment of feudal incidents, the Crown
could checkmate his moves. If the succession was disputed, the King
might favour the claimant who pleased or paid him most; or, under colour
of the dispute, refuse to disgorge the estate altogether—holding it in
custody analogous to wardship, and meanwhile drawing the profits. If the
son and heir happened to be from home when his father died, he would
probably experience great difficulty, when he returned, in forcing the
Crown to restore the estates. Such was the experience of William
Fitz-Odo on returning from Scotland in 1201 to claim his father’s
carucate of land in Bamborough.[107] Primer seisin was thus not so much
a separate incident, as a right peculiar to the Crown to take summary
measures for the satisfaction of all incidents or other claims against a
deceased tenant or his heir. Magna Carta admitted this prerogative
whilst guarding against its abuse.[108]
-----
Footnote 105:
The Bishop of Durham enjoyed it, so it seems to be stated in a charter
extorted from him in 1303 by the men of his fief (see Lapsley, _Pal.
of Durham_, p. 133). But this forms no real exception; since the
Bishop, as an Earl Palatine, enjoyed exceptionally the _regalia_ of a
king.
Footnote 106:
See Pollock and Maitland, I. 292. It appears from statute of
Marlborough, c. 16, that _primer seisin_ extended over lands held by
serjeanty as well as by knight’s service.
Footnote 107:
_Rotuli de oblatis_, p. 114.
Footnote 108:
Sir Edward Coke (_Coke upon Littleton_, 77 A) is the original source
of much confusion as to the nature of primer seisin, which he seems to
have considered as a second and additional relief exacted by the Crown
amounting to the whole rent of the first year. The Popes, he further
held (equally erroneously), were only imitating this practice when
they exacted one year’s rent from every newly granted benefice under
the name of “first fruits.” These errors have been widely followed
(_e.g._ Thomson, _Magna Charta_, p. 416, Taswell Langmead, _Const.
Hist._, p. 50).
-----
(_f_) _Fines for alienation_ occupy a place by themselves. Unlike other
incidents already discussed, they became exigible not on the tenant’s
death, but on his wishing to part with his estate to another during his
own lifetime, either as a gift or in return for a price. How far could
he effect this without consent of his lord? This was, for many
centuries, a subject of frequent and heated disputes, often settled by
compromises, in which the tenant paid a fine to the lord for permission
to sell. Such fines are payable at the present day in Scotland (under
the name of “compositions”) from feus granted prior to 1874; and, where
no sum has been mentioned in the Feu Charter, the law of Scotland
defines the amount exigible as one year’s rent. John’s Magna Carta
contains no provisions on this subject. Disputes, long and bitter, took
place later in the thirteenth century; but their history is irrelevant
to the present inquiry.[109]
-----
Footnote 109:
See Taswell Langmead, _Const. Hist._, pp. 51-2; also Pollock and
Maitland, II. 326. _Cf._, however, c. 39 of the re-issue of Magna
Carta in 1217.
-----
II. _Feudal Aids._ The feudal tenant, in addition to fulfilling all the
essentials of the feudal relation and also all the burdensome incidents
already enumerated, was expected to come to the aid of his lord in any
special crisis or emergency. The help thus rendered was by no means
reckoned as a payment to account of the other obligations, which had
also to be paid in full. The additional sums thus given were technically
known as “aids.” At first, the occasions on which these might be
demanded were varied and undefined. Gradually, however, they were
limited to three. Glanvill,[110] indeed, mentions only two, namely, the
knighting of the overlord’s eldest son, and the marriage of his eldest
daughter; but he intends these, perhaps, merely as illustrations rather
than as forming an exhaustive list. Before the beginning of the
thirteenth century the recognized aids were clearly three—the ransoming
of the king and the two already mentioned. This understanding was
embodied in Magna Carta.[111]
-----
Footnote 110:
IX. c. 8.
Footnote 111:
See _infra_, under chapter 12.
-----
A tradition has been handed down from an early date, that these aids
were in reality voluntary offerings made by the tenant as a mark of
affection, and forming no part of his legal obligations.[112]
-----
Footnote 112:
Thus, the Abingdon version of the _Anglo-Saxon Chronicle_ (II. 113)
speaks of “auxilium quod barones michi dederunt”; while Bracton says
(Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum
dependeant ex gratia tenentium, et non ad voluntatem dominorum.”
This plainly became, however, a legal fiction, as regarded the aids
acknowledged by customary law; the tenant dared not refuse to pay the
recognized three. As regarded any further payments, it was by no means a
fiction. When the Crown desired to exact contributions for any other
reason, it required to obtain the consent of the _commune concilium_.
This, for example, was done by Henry III. before taking an aid on the
marriage of his eldest sister. The importance of the necessity for such
consent can hardly be exaggerated in its bearing on the origin of the
rights of Parliament.
The Great Charter, while confirming the tacit compromise arrived at by
custom, whereby only the three aids might be taken without consent of
the baronage, left the _amount_ of such aids undefined, contenting
itself with the extremely vague provision that they should be
“reasonable.” Examples of such payments, both before and after the
Charter, are readily found in the Exchequer Rolls. Thus, in the
fourteenth year of Henry II., that king took one mark per knight’s fee
on marrying his daughter Maud to the Duke of Saxony. Henry III. took
20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom,
20s. had been exacted from each knight’s fee (save those owned by men
actually serving in the field); and Henry III. took 40s. in his
thirty-eighth year at the knighting of his son. Probably there existed,
at an early date, some understanding as to the limits within which
“reasonableness” should be reckoned, but the amount was never stated in
black and white before the third year of Edward I. The Statute of
Westminster I.[113] fixed the “reasonable” aid payable, not to the Crown
but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate
in socage of £20 annual value. This rate, it will be observed, is
one-fifth of the knight’s relief.[114] The Crown, in thus enforcing
“reason” on mesne lords, seems never to have intended that the same
limit should hamper its own dealings with Crown tenants, but continued
to exact larger sums whenever it thought fit.[115]
-----
Footnote 113:
3 Edward I. c. 36.
Footnote 114:
Fixed at 100s. by c. 2 of Magna Carta.
Footnote 115:
One entry in the _Memoranda Roll_ of 42 Henry III. (cited Madox I.
615) seems at first sight to contradict this. It seems in that year to
be admitted that the Crown could not exact more than 20s. of aid per
knight’s fee; but in 1258 the baronial opposition would be strong in
the Exchequer as elsewhere.
-----
Thus £2 per fee was taken in 1346 at the knighting of the Black Prince.
A Statute of Edward III.[116] at last extended to the Crown the same
measure of “reasonableness” as had been applied three-quarters of a
century earlier to mesne lords. The last instances of the exaction of
aids in England occur as late as the reign of James I., who, in 1609,
demanded one for the knighting of the ill-fated Prince Henry, and in
1613 another for the marriage of his daughter Elizabeth to the Prince of
Orange.
-----
Footnote 116:
25 Ed. III. stat. 5, c. 11.
-----
III. _Suit and Service._ This phrase expresses the essential obligations
inherent in the very nature of the feudal relation. It may be expanded
(as regards tenure in chivalry) into the duty of attendance at the
lord’s court, whether it met for administrative or judicial purposes, or
for reasons of mere display, and the further duty of military service
under that lord’s banner in the field. Suit, or attendance at court, had
ceased to be an urgent question before the reign of John. Indeed, the
barons, far from objecting to be present there, were gradually
approaching the modern conception, which regards it as a privilege
rather than a burden to attend the _commune concilium_—the embryo
Parliament—of the King. They urged, in especial, that only in a full
feudal court, at which each great Crown tenant had a right to appear,
could any one of their number be judged in a plea involving loss of
lands or of personal status.[117]
-----
Footnote 117:
See _infra_, under chapter 39.
-----
It was far otherwise with the duties of military service, which were
rendered every year more unwillingly, partly because of the increased
frequency of warlike expeditions, partly because of the greater cost of
campaigning in distant lands like Poitou, partly because the English
barons were completely out of sympathy with John’s foreign policy and
with him. We have seen that the want of definition and looseness of
practice in the reign of William the Conqueror left to future ages a
legacy fertile in disputes. William I. and his barons lived in the
present; and the present did not urgently call for definition.
Therefore, the exact duration of the military service to be rendered,
and the exact conditions (if any) on which exemption could be claimed,
were left originally quite vague. Such carelessness is easily explained.
Both Crown and barons hoped that by leaving matters undefined, they
would be able to alter them to their own advantage. This policy was sure
to lead to bitter quarrels in the future, but circumstances delayed
their outbreak. The magnates at first readily followed William to the
field wherever he went, since their interests were identical with his,
while warfare was their normal occupation.
The exact amount of military service was gradually fixed by custom, and
both sides acquiesced in reckoning the return due (_servitium debitum_)
for each knight’s fee or _scutum_ as the service of one fully armed
horseman during forty days. There were still, however, innumerable minor
points on which disputes might arise, and these remained even in 1215.
Indeed, although several chapters of the Great Charter attempted to
settle certain of these disputed points, others were left as bones of
contention to subsequent reigns: for example, the exact equipment of a
knight; the liability to serve for more than forty days on receiving pay
for the extra time; what extent of exemption (if any) might be claimed
by churchmen holding baronies on the ground that they could not fight in
person; how far a tenant might compromise for actual service by
tendering money; whether attendance and money might not both be refused,
if the King did not lead his forces in person; and whether service was
equally due from all estates for foreign wars as for home ones.[118]
-----
Footnote 118:
Some of these questions might be answered in particular cases by the
terms of special charters. Thus the _Hundred Rolls_ (1279) relate how
Hugh de Plesens held the Manor of Hedington, and was liable for one
knight’s fee when scutage ran; that he must go with the King and serve
him for forty days at his own expense, and thereafter at the expense
of the King. _Rot. Hund._, II. p. 710; cf. for _France, Etablissements
de St. Louis_, I. c. 65.
Such difficulties were increased, as time went on, rather than removed.
The Conqueror’s followers had possessed, like their lord, estates on
both sides of the Channel: his wars were theirs. Before John’s reign,
these simple relations had become complicated by two considerations. By
forfeitures and the division of inheritances between sons of one father,
holders of English fiefs and holders of Norman fiefs had become
distinct; the English barons had in 1213 nothing at stake in the Crown’s
selfish schemes of aggrandisement or defence. The England of John
Lackland, like the England of William of Orange, objected to be
entangled in foreign wars in the interests of foreign possessions of the
King. On the other hand, the gradual expansion of the dominions of the
wearers of the English Crown increased the number of their wars with the
number of their interests, and increased, too, the trouble and expense
of each expedition. The small wars with Wales and Scotland formed a
sufficient drain on the resources of English magnates without their
being summoned in intermediate years to fight in Maine or Gascony. The
greater number of campaigns might well be reckoned a breach of the
spirit of the original agreement.
Were the barons bound to follow John in a forlorn attempt, of which they
disapproved, to recover his lost fiefs from the French Crown? Or were
they bound to support him only in his legitimate schemes as King of
England? Or were they, by way of compromise, liable for services in the
identical possessions held by William the Conqueror at the date when
their ancestors first got their fiefs—that is, for wars in England and
Normandy alone? Tenderness for legal subtleties or strict logic could
hardly be expected from the malcontents of the northern counties,
smarting under a dumb sense of wrong. Despising all nice definition,
they declared roundly in 1213 that they owed no service whatsoever out
of England.[119] This extreme claim put them clearly in the wrong, since
John had many precedents to the contrary ready to lay before them. When
the King, on his return from his unfortunate expedition in 1214,
demanded a scutage from all who had not followed him to Poitou, the
malcontents declared that they had no obligation either to follow him
out of the kingdom, or to pay a scutage in lieu thereof.[120] Pope
Innocent was probably correct in condemning this contention as founded
neither on English law nor on feudal custom.[121] There is some ground
for believing that a compromise was mooted on the basis that the barons
should agree to serve in Normandy and Brittany, as well as in England,
on being exempted from fighting elsewhere abroad.[122]
-----
Footnote 119:
See R. Coggeshall, p. 167; the barons argued _non in hoc ei obnoxios
esse secundum munia terrarum suarum_.
Footnote 120:
W. Coventry, II. 217.
Footnote 121:
See his letter dated 1st April, 1215, in _New Rymer_, I. 128, ordering
the barons to pay the scutage of Poitou.
Footnote 122:
The evidence for this is chiefly inferential, but would be greatly
strengthened if we could establish the genuineness of the charter
discussed by Mr. J. H. Round, Mr. Prothero, and Mr. Hubert Hall in
_Eng. Hist. Rev._, VIII. 288, and IX. 117 and 326. See the document in
Appendix.
-----
A definite understanding on this vital question was never arrived at—not
even on paper, since chapter 16 of Magna Carta contented itself with the
bald provision that existing services were not to be increased (without
defining what these were). This was merely to shelve the difficulty: the
dispute went on under varying forms and led to a violent clashing of
wills in the unseemly wrangle between Edward I. and his Constable and
Marshal, dramatized in a classic passage by Walter of Hemingburgh.[123]
Strangely enough, the _Confirmatio Cartarum_ of 1297, which was, in
part, the outcome of this later quarrel, omits (like Magna Carta
itself)[124] all reference to foreign service. The total omission from
both charters of all mention of the chief cause of dispute is
noteworthy. It must be remembered, however, that the question of
liability to serve abroad had practically resolved itself into that of
liability to scutage, and that chapters 12 and 14 of the Charter of 1215
provided an adequate check on the levy of all scutages; but this is a
subject of crucial importance, which requires separate and detailed
treatment.
-----
Footnote 123:
_Chronicon_, II. 121.
Footnote 124:
See, however, _infra_ under c. 16.
-----
IV. _Scutage._ The Crown did not always insist on actual personal
service, but was frequently willing to accept a commutation in the form
of a money payment. This subject of scutage is one of the most vexed of
questions; all received opinions of yesterday having to-day been thrown
into the melting pot. Serious attempts constructively to restate the
whole subject have hardly been made; and no conclusions have yet
received general acceptance.
Three modifications, however, of the theories of Stubbs and Freeman,
once universally accepted, seem likely to be soon established: (1) that
“scutage” is an ambiguous term with a vague general meaning as well as a
narrow technical meaning; (2) that the importance of the changes
introduced by Henry II. in 1156 and 1159 has been much exaggerated; and
(3) that at a later time, probably during John’s reign, scutage changed
its character. It ceased to be normally a commutation of service, since
it was not infrequently exacted by the Crown in _addition_ to military
service actually performed. Each of these propositions requires
explanation.
“Scutagium,” or “shield-money,” often means, it is true, a specific sum
of so much per knight’s fee (normally twenty shillings) accepted by the
King in lieu of the personal service in his army due by his tenants _in
capite_. Thus it is, as Dr. Stubbs explains, “an honourable commutation
for personal service”;[125] but it is also loosely used[126] to denote
any exaction whatsoever assessed on a feudal basis (that is, taken
exclusively from holders of fiefs) irrespective of the occasion of its
levy. Thus, money taken in name of one of the three feudal _aids_ is
sometimes described as a scutage; and other instances might be cited.
-----
Footnote 125:
Stubbs, _Const. Hist._, I. 632.
Footnote 126:
As was long ago pointed out by Madox, I. 619.
-----
Again, learned opinion tends towards the belief that Henry II. made no
radical or startling alteration. Professor Freeman, Dr. Stubbs, and
their adherents familiarized a bygone generation of historians with the
view that one of Henry’s most important reforms was to allow his Crown
tenants at their discretion to substitute payments in money for the old
obligation of personal service in the field—this option being granted to
ecclesiastics in 1156, and to lay barons in 1159. Such a theory had _a
priori_ much to recommend it. A measure of this nature, while giving
volume and elasticity to the resources of the Crown, was calculated
subtly to undermine the basis of the feudal tie; but Henry, farseeing
statesman as he was, could not discard the ideals of his own generation.
No evidence that he made any sweeping change is forthcoming. His
grandfather, Henry I., is shown by the evidence of extant charters to
have accepted money in place of the services of knights _when it suited
him_ (notably from church fiefs in 1109),[127] and there is no evidence
(direct or indirect) to show that the grandson accepted such commutation
_when it did not suit him_. The conclusions formulated, with his usual
energy, by Mr. J. Horace Round, lie implicitly in the examples from the
_Pipe Rolls_ stored in the great work of Madox. From these it would
appear that the procedure of the Exchequer of the great Angevin and his
two sons might be explained in some such propositions as these:
-----
Footnote 127:
See Round, _Feudal England_, p. 268.
-----
(_a_) The option to convert service into scutage lay with the Crown, and
not with the tenants, either individually or as a body. When the King
summoned his feudal army no baron could (as Professor Freeman would have
us believe) simply stay away under obligation of paying a small fixed
sum to the Exchequer. On the contrary, Henry and his sons jealously
preserved the right to insist on _personal_ service whenever it suited
them; even efficient substitutes were not always accepted, much less
money payments.
(_b_) If the individual wished to stay at home he required to make a
special bargain to pay such fine as the King agreed to accept—and
sometimes he had to send a substitute in addition. The _Pipe Rolls_ show
many such payments by stay-at-homes _ne transfretent_ or _pro remanendo
ab exercitu_. Thus, in the twelfth year of John’s reign a Crown tenant
paid a fine “that he might send two knights to serve for him in the army
of Ireland.”[128]
-----
Footnote 128:
Madox, I. 658.
-----
Sometimes, indeed, Henry II. might announce that payments at a certain
rate would be accepted generally in lieu of service, but this was when
it suited him, not when it suited his military tenants. In this
connection twenty shillings per fee became recognized as a usual, though
by no means a necessary, rate.
(_c_) In the ordinary case, if the tenant in chivalry neither went in
person nor obtained leave from the Crown to stay away, he was in evil
plight. Defaulters were “_in mercy_”; they sometimes forfeited their
entire estates to the Crown,[129] and might be glad to accept such terms
of pardon as a gracious King condescended to hold out to them.
Sometimes, it is true, quite small amercements were inflicted; the Abbot
of Pershore in 1196 escaped with an amercement of 40s.[130] Such
leniency, however, was exceptional, and the result of special royal
clemency.
-----
Footnote 129:
See _Pipe Roll_ of 12 John, cited in Madox, I. 663.
-----
Footnote 130:
See _Pipe Roll_ of Richard I., cited _ibid._
-----
The right to determine the amount of amercements to be taken lay within
the province of the Barons of the Exchequer, who also judged whether or
not lands had escheated by default.
Henry II. seems to have levied money in name of scutage only when
actually at war—on seven occasions in all during a reign of thirty-five
years; and only once at a rate exceeding 20s., if we may trust Mr.
Round,[131] and that when he was putting forth a special effort against
Toulouse. Richard I., with all his rapaciousness, levied, apparently,
only four scutages during ten years, and the rate of 20s. was never
exceeded even in the King’s hour of urgent need,—in 1194, when the
arrears of his ransom had to be paid and preparations simultaneously
made for war in Normandy.
-----
Footnote 131:
_Feudal England_, 277 _seq._
-----
At John’s accession, then, three rules might be regarded as having all
the prescriptive force of a long unbroken tradition, namely, (1) that
scutage was a reserve for extraordinary emergencies, not a normal yearly
burden; (2) that the recognized maximum was 20s. per knight’s fee, while
a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and
(3) that the payment of scutage to the King at a rate previously fixed
by him acted as a complete discharge of all obligations due for that
occasion.
If it can be proved that John, almost from his accession, deliberately
altered all three of these well-established rules, and that too in the
teeth of the keen opposition of a high-spirited baronage whose members
felt that their pride and prestige as well as their money-bags were
attacked, a distinct step is taken towards understanding the crisis of
1215. Such knowledge would explain why a storm, long brewing, burst in
John’s reign, neither sooner nor later; and even why some of the
disreputable stories told by the chroniclers and accepted by Blackstone
and others, found inventors and willing believers.
It is here maintained that John did make changes in all three
directions; and, further, that the incidence of this increase in
feudal burdens was rendered even more unendurable by two
considerations:—because at his accession there remained unpaid
(particularly from the fiefs of the northern knights) large arrears of
the scutages imposed in his brother’s reign,[132] and because in June,
1212, John drew the feudal chain tight by a drastic and galling
measure. In that month he instituted a strict inquest into the amount
of feudal service exigible from every estate in England, to prevent
any dues escaping his wide net, and to revive all services and
payments that had lapsed or were in danger of lapsing.
-----
Footnote 132:
Miss Norgate, _John Lackland_, p. 122.
-----
That he made the first two changes becomes a certainty from a glance at
the table of scutages actually extorted during his reign, as these are
here copied from a list compiled by a writer of authority who has no
special theory to support,[133] viz.:
First scutage of reign— 1198-9— 2 marks per knight’s fee.
Second " " 1200-1 2 " "
Third " " 1201-2 2 " "
Fourth " " 1202-3 2 " "
Fifth " " 1203-4 2 " "
Sixth " " 1204-5 2 " "
Seventh " " 1205-6 20s. "
Eighth " " 1209-10 2 marks "
Ninth " " 1210-11 2 " "
Tenth " " 1210-11 20s. "
Eleventh " " 1213-14 3 marks "
-----
Footnote 133:
Miss Norgate, _John Lackland_, p. 123 note, correcting Swereford’s
lists in the _Red Book of Exchequer_.
-----
It will be seen that, in the very first year of his reign, John took a
scutage, and that, too, at a rate above the established normal, at two
marks per _scutum_ (only once equalled, thirty years before, and then
under special circumstances). Even one such exaction must have made the
already sulky Crown tenants look askance.
Next year John wisely allowed them breathing space; then without a break
in each of the third, fourth, fifth, sixth and seventh years of his
reign, scutages were extorted in quick succession at the high rate of
two marks. If John meant to establish this as a new normal rate, he did
so not without some show of reason, since that would exactly pay the
wages of a knight at 8d. _per diem_ (the rate then current), for a
period of forty days (the exact term recognized by public opinion as the
maximum of compulsory feudal service).
_Fines_, in addition to this scutage of two marks, were apparently
exacted from those who had not made the necessary compromise for
personal service in due time.[134]
-----
Footnote 134:
See (for year 1201) Ramsay, _Angevin Empire_, p. 390, and authorities
there cited.
-----
These scutages were collected with increasing difficulty, and arrears
gradually accumulated; but the spirit of opposition increased even more
rapidly. In 1206, apparently, the breaking point was almost
reached.[135] Accordingly, in that year, some slight relaxation was
allowed—the annual scutage was reduced from two marks to 20s. John’s
needs, however, were as great as ever, and would prevent all further
concessions in future years, unless something untoward happened.
Something untoward _did_ happen in the summer of 1207, when John
quarrelled with the Pope. This event came in time, not as John thought
to _prevent_, but, as the sequel proved, merely to _postpone_, the
crisis of the quarrel with the baronage. John had, for the time being,
the whole of the confiscated property of the clergy in his clutches. The
day of reckoning for this luxury was still far distant, and the King
could meanwhile enjoy a full exchequer without goading his Crown tenants
to rebellion. For three years no scutage was imposed. In 1209, however,
financial needs again closed in on John, and a new scutage of two marks
was levied; followed in the next year actually by two scutages, the
first of two marks against Wales, and the second of 20s. against
Scotland. John never knew when to stop. These three levies, amounting to
a total of five-and-a-half marks per fee within two years, strained the
tension almost to breaking point.
-----
Footnote 135:
Cf. Miss Norgate, _John Lackland_, p. 125.
-----
During the two financial years immediately following (Michaelmas, 1211,
to Michaelmas, 1213) no scutage was imposed. John, however, although he
thus a second time relaxed the tension, had no intention to do so for
long. On the contrary, he determined to ascertain if scutages could not
be made to yield more in the future. By writs, dated 1st June, 1212, he
instituted a great Inquest throughout the land. Commissioners were
appointed to take sworn verdicts of local juries as to the amount of
liability due by each Crown vassal. Mr. Round[136] considers that
previous writers have unaccountably ignored the importance of this
measure, “an Inquest worthy to be named in future by historians in
conjunction with those of 1086 and 1166,”[137] and describes it as an
effort “to revive rights of the Crown alleged to have lapsed.” It is
possible that John, by this Inquest of 1212, sought also
(unsuccessfully, as the sequel proved) to do what Henry had done
successfully in 1166—that is, to increase the amount of knights’ fees on
which each Crown tenant’s scutage was assessed by adding to the previous
total the number of knights recently enfeoffed.
-----
Footnote 136:
_Commune of London_, pp. 273-4.
Footnote 137:
Two historians, however, who have recently given valuable and
independent accounts of the reign of John, say little of its value.
Sir James Ramsay (_Angevin Empire_, p. 432) treats it briefly, and
Miss Norgate (_John Lackland_, p. 163) barely notices it.
-----
John clearly intended by this Inquest, the returns to which were due on
the 25th June, 1212, to prepare the necessary machinery for wringing the
uttermost penny out of the next scutage when occasion for one again
arose. That occasion came in 1214.
Up to this date, even John had not dared to exact a rate of more than
two marks per knight’s fee; but the weight of his constant scutages had
been increased by the fact that he sometimes exacted personal services
in addition, and that he inflicted crushing fines upon those who neither
went nor arranged beforehand terms of composition with the King.[138]
-----
Footnote 138:
Miss Norgate (_John Lackland_, p. 123) describes the exactions
supplementing the scutages: "These scutages were independent of the
fines paid by the barons who did not accompany the King on his first
return to Normandy in 1199, of the money taken from the host as a
substitute for its service in 1201, of the equipment and payment of
the ‘decimated’ knights in 1205, and the fines claimed from all the
tenants-in-chivalry after the dismissal of the host in the same year,
as well as of actual services which many of those who had paid the
scutage rendered in the campaigns of 1202-4 and 1206."
Thus gradually and insidiously throughout the entire reign of John, the
stream of feudal obligations by many different channels steadily rose
until the barons feared that nothing of their property would be saved
from the torrent. The normal rate of scutage had been raised, the
frequency of its imposition had been increased, the conditions of
foreign service had become more burdensome, and the objects of foreign
expeditions more unpopular; while attempts were sometimes made to exact
both service and scutage in the same year. The limit of the barons’
endurance was reached when, on 26th May, 1214, John, already discredited
by his unsuccessful expeditions in Poitou, soon to be followed by the
utter overthrow of his allies at Bouvines, issued writs for a scutage at
the unheard-of rate of three marks, grounded doubtless on the inquest of
1212 and unusually far-reaching in the subjects which it embraced.[139]
-----
Footnote 139:
See Miss Norgate, _John Lackland_, 210, and cf. _supra_, p. 37.
-----
Then the final crash came; this writ was like a call to arms—a call not
to follow the King’s banner, but to fight against him.
III. Royal Justice and Feudal Justice.
A well-known aphorism of legal text-books, couched in language unusually
figurative, declares the King to be “the sole fountain of justice.”
Correct as it is to apply this metaphor to the present state of the
constitution, it would be an anachronism and a blunder to transport it
into the thirteenth century. In John’s reign there still were—as there
had been for centuries—not one, but many competing jurisdictions. It was
by no means a foregone conclusion that the King’s Courts were the proper
tribunals to which a wronged individual must repair to seek redress. On
the contrary, the great bulk of the rural population, the villeins, had
no _locus standi_ except in the court of the manor to which they
belonged; while the doors of the royal Courts had been closed against
the ordinary freeman previous to the reign of Henry II. Royal justice
was still the exception, not the rule. Each man must seek redress, in
the ordinary case, in his own locality. To dispense justice to the
nation at large was no part of the normal business of a medieval King.
I. _Rival Systems of Law Courts._ In the thirteenth century, there
existed not one source of justice, but many. Rival courts, eagerly
competing to extend their own sphere of usefulness and to increase their
own fees, existed in a bewildering multitude. Putting aside for the
moment the Courts Christian, the Borough Courts, the Forest Courts, and
all exceptional or peculiar tribunals, there existed three great rival
systems of jurisdiction which may be named in the order in which they
became in turn prominent in England.
(1) _Local or District Courts._ Justice was originally a local
product, and administered in rude tribunals, which partook more or less
of a popular character. Each shire had its council or assembly for
hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually
as a “_comitatus_” after the Norman Conquest; while each of the smaller
districts subdividing the shire, and forming units of administration for
purposes of taxation, defence, justice, and police, had a moot or
council of its own, serving as a court of law, to which the inhabitants
of the various villages brought their pleas in the first instance. These
smaller districts were known as hundreds in the south, and as wapentakes
(a name of Danish derivation) in the north.
The theory generally received is that all freemen were originally
suitors in the courts of the shire and the hundred, and that the whole
body of those present, the ordinary peasant (“ceorl”) equally with the
man of noble blood (“eorl”), took an active part in the proceedings,
pronouncing (or, at least, concurring in) the judgments or dooms there
declared; but that, as time progressed, the majority of the Anglo-Saxon
ceorls sank to the half-servile position of villeins—men tied for life
to the soil of the manor, and passing, like property, from father to
son. These villeins, although still subjected to the burden of
attendance, and to some of the other duties of their former free estate,
were deprived of all those rights which had once formed the counterpart
of the obligations. Another school of historians, it is true, denies
that the mass of the population, even in very early times, ever enjoyed
the right to any active share in the dispensation of justice. It is
unnecessary here to attempt a solution of these and many other intricate
problems surrounding the composition and functions of the courts of
shire and hundred; or to discuss the still more vexed question how far
the small assembly of the villagers of each township is worthy to be
reckoned a formal court of law. It is sufficient to emphasize the
importance of the existence from early times of a complete network of
courts, each dispensing justice for the people of its own district.
(2) _Feudal Courts._ Centuries before the Norman Conquest, this system
of popular or district justice found itself confronted with a rival
scheme of jurisdictions—the innumerable private courts belonging to the
feudal lords of the various estates into which the whole of England had
been divided. This new system of private tribunals (known indifferently
as feudal courts, manorial courts, seignorial courts, or heritable
jurisdictions) slowly but surely, such is the orthodox view generally,
although not universally accepted, gained on the older system of popular
courts of shire, hundred, and wapentake.[140]
-----
Footnote 140:
This account of the relations of the two sets of courts would receive
the support of recent writers, such as Maitland and Round, as well as
of the older generation, such as Stubbs and Freeman. Mr. Frederic
Seebohm may be mentioned as perhaps the most weighty upholder of the
opposite view, which regards the manorial courts as of equally early
or earlier origin than those of hundred and shire.
-----
Practically every holder of land in England came to be also the holder
of a court for the inhabitants of that land. The double meaning of the
word “_dominus_” illustrates the double position of the man who was thus
both owner and lord.[141] In the struggle between two schemes of
justice, the tribunals of the feudal magnates easily triumphed, but
never absolutely abolished their rivals. The earlier popular courts
still lived on; but the system of district justice which had once
embraced the whole of England was completely honeycombed by the growth
of the feudal courts. As each once-free village passed under the
domination of a lord, and gradually became a manor or embryo-manor, the
village-moot (with such rudimentary authority as it may originally have
possessed) gave way before a new manorial court endowed with much wider
powers and with more effective sanction for enforcing them. Further, as
complete hundreds fell under the control of specially powerful magnates,
the entire courts of these hundreds were replaced by or transformed into
feudal courts; franchises thus took the place of many of the old popular
moots. Still, the older system retained possession of part of the
disputed ground, thanks to the protection given it in its hour of need
by the Crown. A great majority of the hundreds never bowed to the
exclusive domination of any one lord, and the courts of the shires were
jealously guarded by the Norman Kings against the encroachment of even
the most powerful of barons. It is true that they only escaped
subjection to a local landowner in order to fall under the more powerful
domination of the Crown. Yet the mere fact that they continued in
existence acted at least as a check on the growth of the rival system of
seignorial tribunals.
-----
Footnote 141:
Cf. “landlord.”
-----
Although it was the policy of the Norman Kings to prevent their barons
from gaining excessive powers of jurisdiction, it was by no means their
policy to oppose these jurisdictions altogether. On the contrary, the
Conqueror and his sons were glad that order should be enforced and
justice administered, even in a rough-and-ready manner, in those
districts of England whither the Crown’s arm was not long enough to
reach, and where the popular courts were likely to prove inefficient.
Thus, the old system and the new existed side by side; it was to the
interest of the central government to play off the one against the
other.
In later days (but not till long after Magna Carta) each manorial
tribunal split into three distinct courts, according to the class of
pleas it was called upon to try. Later writers distinguish absolutely
from each other, the Court Baron, settling civil disputes between the
freeholders of the manor; the Court Customary, deciding non-criminal
cases among the villeins; and the Court Leet, a petty criminal court
enforcing order and punishing small offences. The powers of these courts
might vary, and in many districts the jurisdiction over misdemeanours
belonged not to the steward of the lord of the manor, but to the sheriff
in his half-yearly Circuits or “Tourns” through the county. In the
imperfectly feudalized districts the Tourn of the sheriff, as the
representative of the Crown, performed the same functions as the Court
Leet performed within the territories of a franchise.
(3) _Royal Courts._ Originally, the King’s Court had been merely one
feudal court among other feudal courts—differing in degree rather than
in kind from those of the great earls or barons. The King, as a feudal
lord, dispensed justice among his feudal tenants (whether barons and
freemen or only servile dependents), just as any baron or freeman
dispensed justice among _his_ tenants, bond or free. No one dreamed, in
the time of the Norman Kings, that the _Curia Regis_ would or could
undertake the enormous labour of dispensing justice for the whole nation
(or even of supervising the courts which did dispense it). Each
individual must, on the contrary, look for the redress of wrongs either
to the court of the people of his own district, or to the court of his
lord. Royal justice for all (in the modern sense) was simply impossible.
The monarchy had no machinery at command for effecting this. The task
was a gigantic one, which no Anglo-Saxon King, which not even William
I., could possibly have undertaken. No attempt in this direction was
made by the Crown until the reign of Henry II., who was placed in a
position of unprecedented power, partly by circumstances, but chiefly by
his great abilities. Even he, born reformer as he was, would never have
increased so greatly the labours of government, if he had not clearly
seen how enormously the change would enhance both the security of his
throne and the revenue of his exchequer.
In normal circumstances, then, prior to the Angevin period, the King’s
Court was merely a tribunal for transacting the king’s own business, or
for holding pleas between the Crown’s own immediate tenants. Even from
an early date, however, the business of the monarch, from the mere fact
that he was lord paramount, was necessarily wider than the business of
any mesne lord. In a dim way, too, it must have been apparent from the
first, that offences against the established order were offences also
against the king, and that, therefore, to redress these was the king’s
business competent in the King’s Courts. Further, the Sovereign’s
prerogative quickly waxed strong, and enabled him to give effect to his
wishes in this as in other matters. The Crown asserted a right (while
admitting no corresponding duty) to investigate any pleas of special
importance, whether civil or criminal. Still, up to the Norman Conquest,
and thereafter under William and his sons, royal justice had made no
deliberate attempt to become national justice, or to supersede feudal
justice. Each kept to its recognized province. The struggle between the
two began only with the reforms of Henry II.[142]
-----
Footnote 142:
The various stages in the gradual process, extending from the reign of
Henry I. to that of Edward I., by which royal justice insidiously
encroached on feudal justice, may be studied in Professor Maitland’s
admirably lucid account prefaced to _Sel. Pleas in Manorial Courts_,
pp. liii. seq. See also Pollock and Maitland, I. 181-2.
-----
Thus the three great systems of jurisdiction, popular justice, feudal
justice, and royal justice (each depending on a different principle)
succeeded each other, on the whole, in the order in which they are here
named. Yet the sequence is in some ways logical rather than
chronological. No absolute line can be drawn, showing where the
supremacy of one principle ended and that of the next began. For
centuries, all three co-existed, and struggled for the mastery. The
germs of manorial jurisdiction may have been present from an early date.
Shire-courts and hundred courts alike were continually in danger of
falling under the domination of powerful local magnates. Yet the
shire-courts were successful in maintaining till the last (thanks to
royal favour) their independence of the manorial jurisdictions and their
lords; while only a proportion of the hundred courts fell into bondage.
The royal courts, again, exercised an important jurisdiction from the
very foundation of the monarchy; and the king in person, or by deputy,
from an early date, withdrew special causes from the County Courts, and
also interfered with manorial franchises. Finally, the Courts Baron were
never abolished, but only silently undermined by the policy of Henry II.
and his successors, until they gradually sank into decrepitude without
really ceasing to exist.
With these caveats, however, the three systems may be regarded, in some
measure, as following one another in the order named:—popular justice,
feudal justice, royal justice.
II. _Legal Procedure._ The procedure adopted in litigation in
Anglo-Saxon and Norman times was similar in essentials in all three
classes of tribunals, and differed materially from the practice of
courts of law at the present day. Some knowledge of the more glaring
contrasts between ancient and modern procedure may here be profitably
discussed, not only on account of the interest inherent in the subject,
but also because it will conduce to an understanding of several
otherwise obscure provisions of Magna Carta.
Avoiding technical language, and eliminating special procedure peculiar
to any one court or country, the principal stages in a normal litigation
in a modern court of law may be given briefly as follows:
(1) On the complaint of the party aggrieved—the plaintiff—a summons, or
writ, is issued by an officer of the court. Proceedings are opened by
the command addressed to the defendant to appear in court and answer
what is alleged against him.
(2) Each party lodges written statements of his facts and pleas—that is,
of the circumstances of the case as they appear to him (or such of them
as he hopes to bring evidence to prove)—on which he founds his claim or
his defence, and of the legal principles he intends to deduce from these
circumstances. When these statements of facts and pleas have been
revised and adjusted, the complete data are now before the court; each
party has finally stated what he considers essential to his case.
(3) Proof is, in due course, led; that is, each party is afforded an
opportunity of proving such facts as he has alleged (and as require
proof through the denial of his opponent). This he may do by documents,
witnesses, or otherwise. Each party has the further privilege of shaking
his opponent’s evidence by cross-examination.
(4) The next important stage is the debate, the main object of which is
to establish by legal arguments the pleas founded on; to deduce the
legal consequences inherent in the facts which have been proved.
(5) Finally, the judge gives his decision. He has to determine, after
weighing the evidence led by either party, what facts have really been
established, and how far the various pleas of plaintiff and defendant
respectively are implied in these facts. A considerable amount of
thought and reasoning of such a kind as can be successfully performed
only by a highly trained legal mind is thus necessary before the final
decree or sentence can be pronounced by a judge in a modern court of
law.
A trial in Anglo-Saxon and early Norman times stands in notable contrast
to all this in almost every essential of its stages and procedure, and
even more radically in the spirit which pervades the whole. Thus, the
proceedings, from first to last, were purely oral, there being no
original writ or summons, no written pleadings, and no record kept of
the decision except in the memories of those present. The functions of
“the judges” were entirely different, and demanded no previous
professional or legal training, since they were not required either to
weigh a mass of evidence or to determine the bearing of subtle legal
arguments, but merely to see fairplay, and to decide, according to
simple rules, well established by centuries of custom, by what test the
allegations of plaintiff and defendant were respectively to stand or
fall. Finally, the arrangement of the stages of the litigation was
entirely different. It is with something of a shock that the modern
lawyer learns that in civil and criminal causes alike “judgment”
invariably preceded “trial.” Reflection will soon convince him that each
of these words had in the Middle Ages a meaning different from what it
bears to-day. These ancient meanings can be best understood by following
the stages of the old procedure.
(1) The initial difficulty was to obtain the presence of the defendant
in court, since there existed a strange reluctance either to compel his
attendance or to allow judgment to pass against him by default. No
initial writ was issued commanding him to appear; almost endless delays
were allowed.
(2) When both parties had been, after many adjournments, actually
brought face to face before the court, the statements alike of the claim
and of the defence were made verbally and in set _formulae_, the
slightest slip or stumble in the words of which involved complete
failure. This is merely one illustration of the tremendously formal and
technical nature of early legal procedure common to all half-developed
systems of jurisprudence.
(3) Before the plaintiff could put the defendant finally on his defence,
he required to show some preliminary presumption of the probability or
_bona fides_ of his case. This he usually did by producing two friends
ready to substantiate his claim, known sometimes as his “suit” (Latin
_secta_), or his “fore-witnesses.” Their evidence was not weighed
against the “proof” afterwards led by the defendant; its object was
merely to warrant the Court in demanding “proof” from the latter at
all.[143]
-----
Footnote 143:
Sometimes no fore-witnesses were required; for example, to choose an
obvious case, where the claim was for the restoration of stolen
cattle, which had been traced by “hue and cry” to defendant’s house or
byre. The presumption of guilt was here so strong as to render
corroborative evidence unnecessary. The plaintiff’s unsupported oath
was thus sufficient to put the defendant on his “trial.” On the other
hand, in the absence alike of presumption and of witnesses swearing in
support of plaintiff’s oath, the defendant escaped without any “trial”
at all.
-----
(4) Then came the judgment—the chief or “medial” judgment, so called to
distinguish it from the less important final judgment or decree which
came at a later stage. This medial judgment or “doom,” to use the
Anglo-Saxon word, partook in no respect of the nature of the judgment of
a modern tribunal. It came _before_ the proof or trial, not after it. It
consisted indeed in decreeing whether or no, on the strength of the
previous procedure, the defendant should be put to his proof at all; and
if so, _what_ “proof” should be demanded.
Now, the exact test to be appointed by the court varied somewhat,
according to circumstances, but long-established custom had laid down
with some exactitude a rule applicable to every case likely to occur;
and, further, the possible modes of proof were limited to some four or
five at the outside. In Anglo-Saxon times, these were mainly
compurgation, ordeal, witnesses (whose functions were, however, widely
different from those of witnesses in modern law), and charters. The
Norman Conquest introduced for the new-comers, a form of proof
previously unknown in England—"trial by combat"—which tended, for the
upper classes at least, to supersede all earlier methods of procedure.
The “proof,” of whatever kind it might be, thus appointed by the
“judges” for the defendant’s performance was technically known as a
“law” (Latin _lex_) in the sense of a “test” or “trial” or “task,”
according to his success or failure in which his case should stand or
fall.[144]
-----
Footnote 144:
See _infra_ under chapters 38 and 39, where the meaning of _lex_ is
discussed.
It will be apparent that to pronounce a “judgment” in this sense was a
simple affair, a mere formality in the ordinary case, where room for
dubiety could hardly be admitted; and thus it was possible for
“judgment” to be delivered by all the members of a feudal court, or even
by all the suitors present at a meeting of the hundred or shire-moot.
(5) The crucial stage, this “trial” which thus came after “judgment,”
consisted in one party (usually the defendant) essaying, on the day
appointed, to satisfy the court as to the truth of his allegations by
performing the task or “law” which had been set or “doomed” to him. When
this consisted in the production of a charter, or of “transaction
witnesses” (that is, the testimony of those officials appointed in each
market-town to certify the conclusion of such bargains as the sale of
cattle), it commends itself readily to the modern understanding and
approval. More frequently, however, it took the form of “an oath with
oath-helpers,” the plaintiff bringing with him eleven or twelve of his
trusty friends or dependents to swear after him the words of a long and
cumbrous oath, under the risk of being punished as perjurers for any
slip in the formula. This was known also as compurgation. Sometimes the
decision was referred to the intervention of Providence by appealing to
the ordeal of the red-hot iron or the more-dreaded ordeal of water.
After the Norman Conquest, the trial in all litigations between men of
high rank, took the form of _duellum_ or legally regulated combat
between the parties. The defendant gained his case if he caused the
plaintiff to own himself worsted by uttering the word “craven.” He
gained his case equally if he only held out till nightfall (when the
combat terminated) against the plaintiff’s attempts to force him to
utter that fateful word.[145]
-----
Footnote 145:
Details may be studied in Dr. George Neilson’s _Trial by Combat_.
-----
The battle was fought out before the “judges,” who, in the case of an
earl or baron, were the other earls and barons assembled as his peers in
the King’s court; and, in the case of the tenant of a mesne lord, were
the other freeholders of the same manor.
The ancient “trial” (the importance of which is increased by the fact
that it continued long after 1215, and may be traced in several clauses
of Magna Carta)[146] was thus something entirely different from the
modern “trial.” It may be said without exaggeration that there was no
“trial” at all in the current meaning of the word—no balancing of the
testimony of one set of witnesses against another, no open proof and
cross-examination, no debate on the legal principles involved. The
ancient “trial” was merely a formal test, which was, except in the case
of battle, entirely one-sided. The phrase “burden of proof” was
inapplicable. The litigant to whom “a law” was appointed had the
“privilege of proof” rather than the “burden of proof,” and he usually
won his case—especially in compurgation, and even in ordeal if he had
arranged matters properly with the priest who presided.[147]
-----
Footnote 146:
See _infra_, chapters 38 and 39.
Footnote 147:
Ordeal and compurgation and other forms of _lex_ are further discussed
_infra_, under chapters 38 and 39.
-----
(6) The whole was concluded by the final “judgment,” or decree, which
practically took the form of a sentence passed on the vanquished. The
judges could scarcely be said to decide the case, since this had already
been practically decided by the success or failure of the party on whom
the proof had been laid. Those who gave sentence were “judges” merely in
the sense of umpires who saw fairplay to both players, according to the
acknowledged rules of the desperate game.[148]
-----
Footnote 148:
Cf. Thayer, _Evidence_, p. 8. “The conception of the trial was that of
a proceeding between the parties, carried on publicly, under forms
which the community oversaw.”
-----
In one sense, the final (as opposed to the medial) “judgment” was
determined by the parties themselves, or by one of them; in another and
higher sense the facts at issue were left to Providence; a miracle, if
necessary, would attest the just claim of the innocent man. Those who
delivered the final doom, had a purely formal task to perform, and had
little in common with the “judges” of a modern court.[149]
-----
Footnote 149:
These stages of procedure are all fully illustrated by the actual
words of recorded cases of the thirteenth century. Two of these, both
from the reign of John, one decided by battle, the other by ordeal,
may here be cited. (1) "Hereward, the son of William, appeals Walter,
the son of Hugh, of assaulting him, in the King’s peace, and wounding
him in the arm with an iron fork, and giving him another wound on the
head; and this he offers to prove on his body as the Court shall
appoint. And Walter defends all of it by his body. And it is testified
by the coroners and by the whole county that the same Hereward showed
his wounds at the proper time, and has made sufficient suit. Therefore
it is decreed that there should be “battle.”... Let them come armed, a
fortnight from St. Swithin’s day, at Leicester." _Sel. Pleas of Crown_
(Selden Society), p. 18. (2) “Walter Trenchebof was said to have
handed to Inger of Faldingthorpe the knife with which he killed Guy
Foliot, and is suspected of it. Let him purge himself by water that he
did not consent to it. He has failed and is hanged.” _Ibid._, p. 75.
-----
The essentials of this procedure were the same in the Norman as in the
Anglo-Saxon period, and that in all three classes of tribunals—popular
courts, manorial courts, and royal courts.
Two innovations the Norman Kings did make; they introduced trial by
combat (already sufficiently discussed), and likewise the continental
method of obtaining information on sworn testimony. Among the
prerogatives of the Norman Dukes one of the most valuable was the right
to compel the sworn evidence of reliable men of any district—men
specially picked for the purpose, and put on oath before answering the
questions asked of them, thus endangering their eternal welfare in the
event of falsehood, and laying themselves open to temporal penalties for
perjury.
This procedure was known as _inquisitio_ (or the seeking of information)
when regarded from the point of view of the government making the
inquiry, and as _recognitio_ (or the giving of information) from the
point of view of those supplying it. This extremely simple and practical
device was flexible and capable of extension to endless new uses in the
deft hands of the Norman Kings in England. William the Conqueror
employed it in collecting the laws and customs of the conquered people,
and, later on, in compiling Domesday Book; while his successors made it
the instrument of various experiments in the science of taxation. It has
a double claim to the interest of the constitutional historian, because
it was one of the influences which helped to mould our Parliamentary
institutions; and because several of the new uses to which it came to be
put had a close connection with the origin of trial by jury. The
recognitors, indeed, were simply local jurors in a rude or elementary
form.[150]
-----
Footnote 150:
The relation of “recognition” to trial by jury is fully discussed,
_infra_, Part III., section 7.
-----
III. _Reforms of Henry II. in Law Courts and Legal Procedure._ It was
reserved for Henry of Anjou to inaugurate an entirely new era in the
relations of the three classes of courts. He was the first king
deliberately to plan the overthrow of the feudal jurisdictions by
insidiously undermining them, if not yet by open attack. He was the
first king to reduce the old district courts so thoroughly under the
control of royal officials as to turn them practically into royal
courts. He was the first king also to throw open the doors of his own
courts of law to all-comers, to all freemen, that is to say, for the
despised villein had for centuries still to seek redress in the court of
that very lord of the manor who was too often his oppressor.
In brief, then, Henry’s policy was twofold: to convert the County Courts
practically into Royal Courts, since in them royal officials now
dispensed royal justice according to the same rules as prevailed at the
King’s own _Curia_; and to reduce all manorial or private courts to
insignificance by diverting pleas to his own _Curia_, and leaving the
rival tribunals to die gradually from inanition. Both branches of this
policy met ultimately with complete success, although the event hung in
the balance until long after his death. The barons, though partially
deceived by the gradual and insidious nature of Henry’s reforms, did
what they could to thwart him; but the current of events was against
them and with the Crown. Royal justice steadily encroached upon feudal
justice. One of the last stands made by the barons has left its traces
plainly written in several chapters of Magna Carta.[151]
-----
Footnote 151:
_E.g._ 34 and 39.
-----
These contain what seem, at first sight, to be merely trivial
alterations of technical points of court procedure; but inextricably
bound up with them are principles of wide political and constitutional
importance. Henry’s policy was to disguise radical reforms until they
looked like small changes of procedure; it follows that the framers of
Magna Carta, while appearing merely to seek the reversal of these
trivial points, were really seeking to return to the totally different
conditions which had prevailed prior to the reforms of Henry.
A short account of the main outlines of that monarch’s new system of
procedure forms a necessary preliminary to a complete comprehension of
these important chapters of Magna Carta. Such an account falls naturally
into two divisions.
(1) _Criminal Justice._ (_a_) By his Assizes of Clarendon and
Northampton Henry strictly reserved all important crimes for the
exclusive consideration of his own judges either on circuit or at his
court; and he demanded entry for these judges into franchises, however
powerful, for that purpose. In this part of his policy, the King was
completely successful; heinous crimes were, in the beginning of the
thirteenth century, admitted on all hands to be “pleas of the Crown”
(that is, cases exclusively reserved for the royal jurisdiction); and
Magna Carta made no attempt to reverse this part of the Crown’s policy.
The change was accepted as inevitable. All that was attempted in 1215
was to obtain a promise that these functions, now surrendered to the
Crown forever, should be discharged by the Crown’s officials in a proper
manner.[152]
-----
Footnote 152:
See _infra_, under chapters 24 and 45.
-----
(_b_) Henry’s usual good sense, in this matter stimulated by some
notable miscarriages of justice, led him to question the equity of the
procedure usually adopted in criminal pleas, namely, by “appeal” or
formal accusation by the injured party, or his nearest surviving
relative. He substituted, whenever possible, communal accusation for
individual accusation; that is, the duty of proclaiming (or indicting)
the suspected criminals of each district before the King’s Justices was
no longer left to private initiative, but was laid on a body of
neighbours specially selected for that purpose—the predecessors of the
Grand Jury of later days. This new procedure, it is true, supplemented
rather than superseded the older procedure; yet it marked a distinct
advance. Appeals were discouraged and exact rules laid down restricting
the right of accusation to certain cases and individuals.[153]
-----
Footnote 153:
See _infra_, under chapter 54.
-----
(_c_) A necessary complement of the discouragement of appeals was the
discouragement of “trial by combat” also, since that formed the natural
sequel. An ingenious device was invented and gradually extended to an
increasing number of cases; an accused individual might apply for a writ
known as _de odio et atia_, and thus avoid the _duellum_ altogether by
having his guilt or innocence determined by what was practically a jury
of neighbours.[154]
-----
Footnote 154:
See _infra_, under chapter 36.
-----
(2) _Civil Justice._ Henry’s innovations under this head were equally
important.
(_a_) An unflinching rule was established that no case could be brought
before the royal court until a writ had been obtained from chancery.
This had to be paid for, sometimes at a fixed rate, and sometimes at
whatever sum the Crown demanded. The whole procedure in the royal
courts, which followed the issuing of such a writ, came to be known as
“the writ process.” Once it was issued, all proceedings in other courts
must stop. One special form of writ (known as _praecipe_), in
particular, became a royal instrument for removing before the King’s own
_Curia_ cases pending in the manorial courts of mesne lords. To do this
was to enrich the King at the expense of some baron or other freeman, by
bringing to the Exchequer fees which otherwise would be paid to the
owner of the private court. This was plainly "to cause a freeman to lose
his court"—an abuse specially struck at by chapter 34 of the Great
Charter.
(_b_) The mass of new business attracted to the King’s Courts made it
necessary to increase, the staff of judges and to distribute the work
among them. A natural division was that ordinary pleas (or common pleas)
should be tried before one set of judges, and royal pleas (or pleas of
the Crown) before another. This distinction is recognized in many
separate chapters.[155] Thus two groups of judges were formed, each of
which was at first rather a committee of the larger _Curia_ as a whole
than an independent tribunal; but, in later years, the two rapidly
developed into entirely separate courts—the Court of Common Pleas (at
first known as the Bench, that is, the ordinary Bench), and the Court of
King’s Bench (that is, the royal Bench, known also at first as the court
_Coram Rege_, since it was always supposed to be held in the King’s
presence).
Footnote 155:
See _infra_, under chapters 17 and 24.
-----
(_c_) Special procedure for determining pleas of disputed titles to land
or rights of possession was also invented by Henry to take the place of
the ancient method of trial by battle. These Assizes, as they were
called, are fully discussed elsewhere.[156] The Grand Assize was looked
on with suspicion by the barons as a procedure competent only before the
royal courts, and therefore closely bound up with the King’s other
devices for substituting his own jurisdiction for that of the private
courts. The petty assizes, on the contrary, met with a ready acceptance,
and the barons in 1215, far from objecting to their continuance,
demanded that they should be held in regular sessions four times a year
in each county of England.
Footnote 156:
See _infra_, under chapter 18.
-----
These were the chief innovations which enabled Henry, while instituting
many reforms urgently required and gladly welcomed by the mass of his
subjects, at the same time to effect a revolution in the relations of
royal justice to feudal justice. As time went on, new royal writs and
remedies were being continually devised to meet new types of cases; and
litigants flocked more and more readily to the King’s Courts, leaving
the seignorial courts empty of business and of fees. Nor was this the
only grievance of the barons. When one of their own number was amerced
or accused of any offence involving loss of liberty or lands, he might
be compelled by the Crown, under Henry and his sons, to submit to have
the amercement assessed or the criminal proceedings conducted by one of
the new Benches (by a tribunal composed of some four or five of the
King’s officials), in place of the time-honoured judgment of his peers
assembled in the _Commune Concilium_ (the predecessor of the modern
Parliament).
Can we wonder that the barons objected to be amerced and judged by their
inferiors?[157] Can we wonder that they resented the complete though
gradual supersession of their own profitable jurisdictions by the royal
courts?[158] or that they looked with suspicion on every new legal
development of the royal justice? Can we wonder that, when they seemed
to have King John for the moment in their power, they demanded redress
of this group of grievances, as well as of those connected with
arbitrary increase of feudal burdens?
-----
Footnote 157:
See _infra_, under chapters 21 and 39.
Footnote 158:
See _infra_, under chapter 34.
-----
The cause for wonder rather is that their demands in this respect were
not more sweeping and more drastic. It was one thing for their fathers
to have endured the encroachments of so strong a King as Henry II.—far
too wise a statesman to show clearly whither his innovations were
ultimately tending, and (some lapses notwithstanding) a just ruler on
the whole, using his increased prerogatives with moderation and for
national ends. It was quite another thing to endure the same
encroachments (or worse) from an unpopular King like John, discredited
and in their power, who had neither disguised his arrogance nor made
good use of his prerogatives. Royal justice, as dispensed by John, was
in every way inferior to royal justice as dispensed under his father’s
vigilant eye. Yet the exasperated barons, in the hour of their triumph,
actually accepted, and accepted cordially, one half of royal justice;
while they sought to abolish only the other half. The chapters bearing
on the question of jurisdiction may thus be arranged in two groups, some
reactionary, and some favourable to Henry’s reforms. On the one hand, no
lord of a manor shall be robbed of his court by the King evoking before
the royal courts pleas between two freeholders of the lord’s manor;[159]
no freeman shall be judged or condemned by the King’s officials, but
only before the full body of his peers (that is, of his fellow earls and
barons, if he be an earl or baron, and of his fellow tenants of the
manor, if he holds of a mesne lord);[160] earls and barons must be
amerced only by their equals.[161] On the other hand, in prescribing
remedies for various abuses connected with numerous branches of legal
procedure recently introduced into the royal courts, the barons accepted
by implication this new procedure itself and the royal encroachments
implied therein. For example, the Crown’s right to hold “Common Pleas”
was impliedly admitted, when the barons asked and obtained a promise
that these should be tried in some certain place (that is, at
Westminster).[162] Yet these very pleas, ordinary ones in which the
Crown had no special interest, as opposed to Pleas of the Crown in which
it had, must have included many cases which, prior to Henry II.’s
reforms, would not have been tried in a royal court. Again, in
regulating the various Petty Assizes, chapters 18 and 19 admit the
Crown’s right to hold them. Such Assizes must be taken henceforth four
times a year. Here, as in chapter 40, the ground of complaint is not
that there is too much of royal justice, but rather that there is too
little of it; it is henceforth to be neither delayed nor denied.
Further, the encroachments made by Henry II. in 1166 on the rights of
private franchises in the matter of criminal jurisdiction are
homologated by acquiescence in the King’s definition of “Pleas of the
Crown” implied in chapter 24.
-----
Footnote 159:
c. 34
Footnote 160:
c. 39.
Footnote 161:
c. 21.
Footnote 162:
c. 17.
-----
These, then, are the two clearly contrasted groups into which the
innovations made by Henry and his sons, within the province of justice,
naturally fell as viewed by John’s opponents in 1215: some of them had
now come to be warmly welcomed, and these, it was insisted, must be
continued by the Crown; while some of them still excited as bitter
opposition as ever, and these, it was insisted, must be utterly swept
away.