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English benefice or in the course of his studies. 1 During his lifetime no proper disposition of his Norman lands may have been made; the authorities may not have been informed of his intention to leave Normandy or he may not have returned within the stated time. Is his land forfeited or not? Again there is the case of doubtful succession, in which the royal bailiff insists that A, who has fled, and not the loyal B, is the legal heir to a piece of land. 2


If we turn from genealogical difficulties to those which were created in feudal relations, we find similar problems. Sometimes the rights of sub-tenants were swept away with those of their lord. A certain B, for example, alleged that he had been deprived of A's services, because some muddle-headed or unscrupulous persons had sworn that A did not hold of B, but of C; and C had fled. 4 frequently the rights of the lord suffered through the defection of his tenant.5 In such cases important points of law might have to be settled; for example, if the royal bailiff had seized the land which the runaway A had held of B, would B have to show before he could enter upon it that the relation between himself and A was of long standing, or, if this were not the case, to prove that he had alienated the land to A with the consent of the overlord ?6 And what would be the position of A's kinsmen holding of him in parage, who had not left Normandy? It is likely that the cases of the refugees would necessitate more

1. Ibid, nos. 41, 46, 365, 390, 396.

2. Ibid, no. 410.

3. Ibid, no. 380.

4. Ibid, no. 49.

5. Ibid, nos. 6, 40, 59, 404, 456.

6. See the Statuta et Consuetudines, cc. 89-91 (Tardif, I, i, 99–101); Pollock and Maitland, History of English Law, second edition, i, 342. 7. Statuta et Consuetudines, c. 88 (Tardif, I, i, 98-9).

precise definitions in the Norman law relating to forfeitures.1

For our more general purpose the significance of these cases lies in the evidence which they afford of Philip's attitude towards John's vassals. Yet the vigorous action. which they reveal covered some hesitation and perplexity. It is true that Philip took very prompt measures. By a decree of 1204-5 he confiscated the lands of all those knights who had their abode in England. A definite term was assigned within which those who had left Normandy were permitted to return and make submission; and absence in England was construed as a sign of disloyalty.3 In Normandy men, especially those of high standing, who had any dealings with 'traitors,' or were even suspected of plotting, were immediately punished. If the story which became current in Normandy be true, Guérin of Glapion was deprived of his lands because he had a private conversation with the emperor Otto. Guy de la Roche, who had spoken with Walter of Mondreville, was obliged

1. It is to be hoped that some Norman jurist will work out the precise effects upon Norman law of the separation of the duchy from England and the rest of the Angevin Empire. For example had it any share in defining the distinction between the 'fief noble' and the 'fief roturier'? According to the thirteenth century custumal, only the former was escheated in the event of the tenant's condemnation. (Viollet, Hist. Litt., xxxiii, 132.) For the chief thirteenth century judgments de forisfacturis, see the references in Perrot, Arresta communia scacarii, pp. 34-5.

2. Actes de Philippe Auguste, no. 933A. Jugements, no. 339: Thomas Pouchin "ivit in Angliam cum rege Johanne, nec rediit in Normanniam ad pacem domini regis, cum aliis qui redierunt ad terminum sibi a domino rege assignatum." See also Querimoniae, nos. 100, 521, from the former of which it appears that those who returned were expected to report themselves to the king's justice.

3. For cases of various kinds see Querimoniae, nos. 62, 64, 65, 73, 422, 429. In one case (no. 84) a man had gone to England with the king's consent but had died within the time allowed for his return. His Norman property was seized on the plea that he had deserted Normandy.

4. Above, p. 256.

to surrender the castle of Beaumont-le-Roger and to swear that he would never again cross the Epte or the Eure into Normandy. On the other hand, Philip probably regarded most of these decisive actions as measures of precaution, not as irrevocable judgments. His attitude after the critical years were over and the victory of 1214 had been won, shows that he was anxious to come to an agreement with those who were not in his peace. 2

And if we turn to England and compare the attitude of John with that of Philip, it appears still more unlikely that Philip was pursuing a deep policy. Both sides expected that a settlement would be reached; and all vexed questions of private ownership would then be solved. The English chancery rolls for 1204 and the next few years show, as we shall see later, that John by no means hardened his heart, and Philip certainly had not any more reason to harden his.

The truth is that Philip's position in Normandy was unprecedented. For the first time a great fief, which had been independent in everything but name, had been added to the royal demesne as the result of a judicial sentence passed by the French court. In previous years John had freely acknowledged the competence of the court to decide the questions arising from his succession to the Angevin dominions, but he had protested loudly against this attempt to disinherit him. The Pope had throughout refused to express any opinion upon the justice of Philip's action, and it was with some difficulty that the king of France established its validity in the minds of men. The situation would have been easier if Normandy had not been attached by the history of two hundred and fifty years to a country

1. Cart. Norm., p. 289, no. 1080; Actes, no. 968. The date is January, 1206.

2. e.g., Jugements, nos. 145, 171. The last reads "judicatum est quod duo soreres Alienor de Barnevilla que sunt ad pacem domini regis, habeant escaetam ejusdem Alienor defuncte, salvo jure tercie sororis que est in Anglia, si ad pacem domini regis venerit."

which had no traditional connection with France and the French crown. Philip might confiscate Norman lands and regard the followers of John as felons, but he could hardly treat the Normans who stayed in England either as foreigners or rebels. At this period not only were the words 'foreigner,' 'alien,' 'traitor' invested with the vaguest political meaning, but even the political unity of France was hardly capable of definition.

France in the wider sense of the word represented a bundle of Carolingian traditions which had been maintained by feudal rather than by national institutions, and in which the Normans had the slightest share. In 1204 the French monarchy had not yet interpreted the unity of France clearly in terms of history and geography and law. Although Philip Augustus took the first step towards this interpretation, it only began to find clear expression after another century of legal intrigues on the Aquitanian border and of wrangling about the rights of the empire on the German frontier. Even the clear-cut theories of the publicists of the sixteenth century and of the statesmen of the seventeenth did not resolve all the vagueness in the definition of the French state. Precision only came with the Revolution. Even then the determination of the National Assembly to have no doubts about French rights in Alsace precipitated the revolutionary wars.

With these considerations in mind we cannot be surprised that Philip Augustus did not press forward his vigorous policy in Normandy to what would seem to be its logical consequences. He could not immediately insist, as the Germans insisted in the case of the inhabitants of Alsace-Lorraine after 1871, that every Norman should decide whether he would be a Norman or an Englishman. He did not attempt to give a precise name to the crime

1. The reader may refer to Kern, Die Anfänge der französichen Ausdehnungspolitik (1910), pp. 15-56, 87-92; and, for the condition of France in this respect at the end of the ancien régime, Brette, Les limites et les divisions territoriales de la France en 1789 (1907).


for which the fugitives lost their lands. They were simply treated as felons, whose lands, like those of any other felons, lapsed to their lords after the king had enjoyed them for a year and a day. It is clear that the cases of injustice or hardship to which I have called attention in the preceding pages were the result of official tyranny or of the inequitable anomalies incidental to every body of law, and not of any additions to the law. Only after a war of fifty years did Saint Louis finally insist that those barons who still held lands both of him and of Henry III, should make their choice between them. It is very unlikely indeed, if we believe the stories of Louis VIII's oath in 1217 and of Saint Louis' conscientious scruples, it is incredible that Philip and his successors regarded the Normans who had not sworn fealty to them as traitors. Treachery was a sin against a man, not a political crime against a ruler. In the minds of all men, French and Norman and English, Gilbert of Vascoeuil, who betrayed Gisors to Philip, and Nicholas Orphin, who betrayed Nonancourt to Richard, and the count of Alençon, who deserted John in 1203, were traitors;2 but it is unlikely that William des Roches, in spite of his tergiversations, was regarded as a traitor. He had made certain arrangements with Philip in 1199 and with John in 1202, and they had failed to observe them. Nor was William the Marshal a traitor when he did homage to Philip for his


1. Jugements, no. 30 (a. 1208), "judicatum est quod Fulco Paganelli habeat terram fratrum suorum fugitivorum . . . . . quia dominus rex habuit exitus ipsius terre de anno." Fulk had endowed his brothers in return for service and homage. The practice in Normandy before 1204 is clear from a letter in Rot. Norm., 51: John wrote to the abbot of Saint Ouen saying that he had given to Richard Comin "exitus terre que fuit Mathaei de Ernenvilla qui est in Francea in instanti anno qui nostri sit. Et vos rogamus quid permittatis predictum Ricardum terram illam interim de vobis tenere per servicium quod terra debet." For the law, see the Statuta et Consuetudines, c. lxxxviii, 1 (Tardif, I, i, 98). On the custom of Poitou, see Rot. Chart., 198b, and above, p. 25. 2. Above, pp. 144, 168, 233.

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