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Norman lands. The Marshal, on the contrary, was an authority upon moral questions of this kind. He is said to have remonstrated with Philip upon the unchivalrous way in which the latter availed himself of such traitorous vermin as the count of Alençon and his colleagues. Philip might have replied with justice that after his condemnation John had no right to expect the support of his followers; we know that it had been one of the objects of the condemnation of 1202, to give John's vassals an excuse for deserting him.1 But Philip knew that he was speaking to a gentleman, and he answered as a gentleman, mildly apologetic for himself and frankly contemptuous of his tools. They were, he said, merely a temporary convenience, to be thrown aside as soon as used.2

Hugh of

We know the fate of one of these men. Gournai, after his peculiarly disgraceful treachery in the spring of 1203,3 found no welcome at Philip's court. He took refuge at Cambrai. The story goes that Hugh one day was riding outside the town with the bishop and some of its chief inhabitants, and remarked upon the wealth and beauty of the place. A burgess who was present innocently remarked: "True, sir, but it has one bad custom." "And what is that?" asked Hugh. "Sir," the burgess replied, "there is not a traitor nor thief under heaven whom it does not shelter." 4 Hugh of Gournai stayed for some time at Cambrai, for his lands in England and Normandy were confiscated, but through the inter

1. This follows from the papal letters of October 31, 1203, Migne, Patrologia Latina, ccxv, 182; Potthast, no. 2013. See Petit-Dutaillis, Studies Supplementary to Stubbs' Constitutional History, i, 113. 2. Guill. le Maréchal, 11. 12687-12700.

74.

3. Above, p. 238. Hugh is styled 'proditor regis' in Rot. de Lib., 4. Histoire des ducs de Normandie et des rois d'Angleterre, ed. Michel, p. 92; a slightly different version in the anonymous French chronicle edited by Delisle in the Recueil des Historiens de France, xxiv, part ii, p. 760.

cession of Otto he succeeded in making his peace with John once more at the end of 1206.1

A long time was to elapse before the royal power in France was able to extend the charge of treason to acts of open disobedience as well as to acts against the person of the king.2

II.

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In England, on the contrary, the most distinct result of the separation from Normandy was the development of the idea of treason and of the law relating to aliens. So long as the baronage of England was as much at home in Normandy as upon the other side of the Channel treason in its political sense was an unknown offence. The relations between king and barons were primarily the relations between lord and vassal. The lord himself was a vassal of the king of France. Many of his vassals, as tenants of

1. Rot. Pat., 57b. The Hugh of Gournai, who is described in October and November, 1203, as John's talliator and servant (Rot. Norm., 110, 113) is obviously a different person.

2. In the thirteenth century the right of the vassal to rebel under certain conditions was still acknowledged in France (Viollet, Histoire des institutions politiques, ii, 219). The history of treason in France is bound up with the growth of the belief in the divine right of the king and the extension of the idea of lèse-majesté. See, for example, the chancellor D'Aguesseau's Mémoire sur la jurisdiction royale, written in 1700, to prove that, from the very nature of the secular power, no ecclesiastic charged with lèse-majesté can be exempt from royal jurisdiction (Oeuvres, vol. v (1788), especially p. 337). Illustrations of treason in France in the middle ages are the trial of Arnulf of Reims at Verzy in 991 and the charges against the bishop of Pamiers in 1301. Gerbert in describing the crimes of Arnulf speaks of his "scelus proditionis et rebellionis" (Lettres de Gerbert, ed. Havet, p. 205). For the libels and other offences of the Bishop of Pamiers against Philip IV, see Lavisse, Histoire de France, III, ii, 143. These cases are very similar to the trials in Merovingian times described by Gregory of Tours, v, 19, 49.

3. Pollock and Maitland, The History of English Law, second edition, i, 303, 461-463; ii, 500-508; Holdsworth, A History of English Law, iii, 251. Sir Matthew Hale, in his Pleas of the Crown, gave the clue. to later writers.

the French lord, owed allegiance to the king of France also, just as they owed it to a duke of Normandy or a king of England. Under these conditions, even the famous definition of treason in the statute of 1352-levying war against our lord the king in his realm-would have been impractical. At the end of the twelfth century this crime was still nothing more than the neglect of feudal obligations and was punished by forfeiture. It was, in other words, felony. The idea of treason was confined to treachery and a few specific crimes against the king. Perhaps the nearest approach to a more public conception of the crime is seen in the popular indignation against Robert fitz Walter and Saer de Quinci for their surrender of Vaudreuil in 1203.1 During the thirteenth century the distinction between the ideas of felony and treason became clear; and the change was due very largely to the attitude which was assumed by the kings of France towards the Norman vassals of the kings of England.

When the lands of those Normans who had been faithful to John were confiscated and residents in England were not permitted to answer to pleas in Norman courts, the kings of England retaliated against those Normans, obedient to France, who held lands in England. As the war went on and peace was not made, this policy of retaliation hardened into a definite theory that those who refused to return to the king's peace were traitors. The way in which this conclusion was reached is interesting. The contest was sufficiently drawn out to establish a distinction between the lands of the Normans and other forfeited property. Normally these lands, as the fiefs of vassals guilty of felony, would after a year and a day have gone to the lord, but the king, expecting a settlement, kept them in his own hands and diverted their proceeds to the exchequer. This plan was, at least in some cases, the result of a conscious policy, as is shown by the disposition of the England lands belonging to the honour of Grand

1. Above, p. 239.

mesnil. In 1204 Petronilla, the dowager countess of Leicester, who had brought the honour to her husband in 1168, gave 3,000 marks for the royal permission to resume her rights in it, with the exception of the 'lands of the Normans.' 1

In course of time some reason for this anomaly-so contrary to the thirty-second clause of the Great Charterhad to be found. "If there was any crime which would give the offender's land not to his lord, but to the king, that crime could not be a mere felonia." 192 The crime was treason. The Normans were assisting the common enemy against our lord the king.

The steps in this agreement are made clear by a consideration of a parallel development in legal theory. By the end of the thirteenth century the law relating to aliens was being defined. The main cause was undoubtedly the growing hatred of foreign politicians, papal nominees, and alien money dealers, but it is probable that the precedents, which gave to the Englishman a legal advantage over the foreigner in England, were those cases in which the followers of the French king tried in vain to establish their claims to English lands and rights. Cases from the early years of Henry III show that persons resident in France, within the power of a king who refused to answer the pleas of Englishmen, could find no protection in English courts. At the end of the century the count of Eu failed to secure a hearing for his claims on the ground

1. Rot. de Fin., 226. Petronilla's son, the well known Robert IV of Leicester, died in this year; his death gave John an opportunity to exact this enormous fine. These exactions are forbidden by c. 7 of the Great Charter.

2. Pollock and Maitland, ii, 502. As the writers point out, "most of the traitors of the twelfth century were tenants in chief or the vassals of rebellious tenants in chief, and the king could claim their lands either as king or lord. The defection of the Normanni raised a new question on a large scale." I doubt, however, whether the suggestion in this sentence that the terrae Normannorum were all, or even mainly, held by sub-tenants, is justified.

that the French king still retained the possession of English barons. "It seems that the king's claims to seize the lands of aliens is an exaggerated generalisation of his claim to seize the lands of his French enemies." 1

3

The lands of the Normans were seized in accordance with a general precept issued by John,2 and became henceforth an object of distinct inquiry and treatment. Several fragmentary lists of the Terrae Normannorum survive. The earliest of these is a valuation of 1204. It was apparently drawn up in or after October. It was followed by a series of inquiries, mainly into the disposition of the lands, the most comprehensive of which seems to have been made in the twentieth year of Henry III's reign. The drastic action of Saint Louis in 1244, when the English who were still suffered to hold lands in Normandy were forced to make a choice between England and France, probably made further inquiries unnecessary." There was clearly no more hope of a settlement, and the disposal of the lands doubtless became permanent. The

4

1. Ibid, i, 462-3. For the count of Eu, see below, p. 494. 2. See the references in Rot. de Fin., 334-5.

3. It is entitled "Rotulus de Valore terrarum Normannorum inceptus regni Regis Johannis sexto," i.e., after June 3, 1204 (Rot. Norm., 122). The date seems to follow from the fact that it includes a reference to Bilsington in Kent, the land of Robert of Courci, as in the custody of Henry of Sandwich (Ibid, 140) Henry of Sandwich received Bilsington upon September 30, and apparently held it until it was granted to the earl of Arundel on October 18, 1207. See Stapleton, Liber de antiquis legibus, p. xl, note.

4. The writ of Inquisition is in the Testa de Nevill, 271b, and is reproduced by Mr. Hubert Hall in his Formula Book of Ministerial and Judicial Records (1909), p. 159. Fragments of this or other inquiries may be studied in the Testa, in the Red Book of the Exchequer (ii, 798), and in Hunter's Rotuli Selecti ad res Anglicas et Hibernicas Spectantes (1834), pp. 259-65. For modern comments, see Hall in Red Book, II, p. cclxv-vi, and Hunter, preface to the Rotuli Selecti, pp. xxxvii-viii. 5. Matthew Paris, Chronica Majora, iv, 288.

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