immunities. These immunities, whatever their effect in establishing private jurisdictions, did not create exemption from the authority of the count. They are described in various ways: they are ducal consuetudines, rights of public justice, royal liberties, and so on. Later they appear as pleas of the sword. The first list of these pleas, confessedly incomplete, comes from the inquiry of 1091, but the charters of Bec and other monasteries show that they were regarded as 'prerogative' pleas of the duke long before this. It is true that the monasteries who possessed them were on the ducal demesne, but the way in which they are described, the fact that even bishops had to prove a prescriptive right to them,3 goes far to justify the view of later witnesses in the twelfth century that those barons who possessed them owed their privileges to ducal grant or acquiescence.4

In spite, then, of the poverty of direct evidence, the

1. Haskins, American Historical Review, xiv, 460.

2. Ibid, p. 461.

3. For Bayeux, see the Livre Noir (Soc. de l'hist. de Normandie), i, 23; and for Lisieux, Martène, Thesaurus, i, 761; and Rot. Chart., p. 19; also Valin, p. 228.

4. The jurors who reported upon ducal rights in Henry II's time (Statuta et consuetudines, c. lxx: Tardif, p. 64) said that the plea of homicide, whether murdrum or not, belonged to the duke alone, aut quibus antecessores ejus, vel ipse, illud dederunt." Note that, if Tardif's reading be accepted, the author definitely attributes 'murdrum' to a Danish origin—“homicidium,' sive clam factum fuerit, quod lingua Dacorum murdrum dicitur, sive palam." This should be compared with the evidence of the Anglo-Norman lawyers (see the note in the Oxford edition of the Dialogus, pp. 193-4).

5. M. Valin brushes this evidence on one side for reasons which seem to me to be too juristic. Of these, the chief are that peace was really maintained by the Truce of God rather than by the duke (I deal with this in the note at the end of this chapter) and that the pleas of the sword grew from crimes committed in protected places into crimes of a general nature, e.g., assault in a house to homicide generally. (Le Duc de Normandie et sa Cour, pp. 188-191.) M. Valin thinks that, since assaults in protected places, when they resulted in death, were

conclusion seems to be justified that from the first the duke was sovereign. Normandy was composed of innumerable jurisdictions every landholder, from the vavassor to the baron, could hold his court for his tenants, where the duel could be fought, and where in later days trial by jury might be made by agreement; 2 and of these courts, some, perhaps many, had judicial rights more than feudal, extending to cases of life and limb;-but from the first these extraordinary non-feudal rights of justice were regarded as originally vested in the duke. The duke or his officials dealt with them unless they belonged by special grant or in virtue of long prescription to the lord. And in consequence, just as the duke was sovereign as well as feudal suzerain, the local officers were public magistrates as well as administrators of the ducal demesne.

On this basis judicial administration developed swiftly from the time of the Conqueror onwards.

In the first place, the machinery became more elaborate. At an early date the viscount shared the administration of justice with a body of judges. It is not easy to fix a precise date for their appearance since the viscount is frequently described as a justice himself in early Norman documents, and references to the justicia may really allude

1. Statuta et consuetudines, c. xli (Tardif, I, i, p. 34). 2. Ibid, c. liv (Tardif, I, i, p. 44).

not punished more severely than murder generally, the former must have preceded the latter as a plea of the sword. This argument is too abstract. The point surely is that any assault in a protected place, whether it led to death or not was a plea of the sword, whereas in other places it might not have been. On the other hand, it is certainly probable that in Normandy, as apparently in England before the Conquest, crimes committed in the places protected by the duke's peace were very rarely granted away, whereas the jurisdiction over general crimes was (see Pollock and Maitland, History of English Law, second ed., ii, 455-6). But it does not follow that the widespread possession of these pleas by the Norman barons was not regarded as an interference with 'public justice.'

to him. But their existence is clear in the first years of the twelfth century. Some of these judges were local officials, others served the duke throughout the duchy.2 Before the death of Henry I some of them formed a body apart from the rest, at the head of the profession. These select persons could form a 'full court' under the presidency first of a chief justiciar, afterwards, in Angevin times, of the seneschal. This interesting parallel to the English curia regis,' in its narrower sense, became the Court of Exchequer, at which civil suits of various kinds, but chiefly cases dealing with property, could be tried in addition to pleas of a financial character.3 Its business comprised the work of the English chancery, so far as this did not follow the king, of the later English court of common pleas, and of the English exchequer. It issued

6

4

1. English Historical Review, xxiv, 219, 223. For the justicia in England, see Davis, England under the Normans and Angevins, p. 523. 2. Ibid. The chief evidence is afforded by the documents in the Livre Noir de Bayeux, and the Montebourg charters, published by Haskins in the English Historical Review, xxiv, 220 seqq.

3. The charter printed by Mr. Round from a Merton chartulary, describing the suit of Bernard the scribe, has always been regarded as an early authentic reference to the Norman court of exchequer, showing it to have been fully established before 1130 (English Historical Review, xiv, 425-6). M. Valin has contended however, that the phrases 'per judicium Baronum de Scaccario,' and 'ad Scaccarium' in this document are insertions of the thirteenth century (Le Duc de Normandie et sa Cour, pp. 125-132). In his view the Court of Exchequer did not exist until after Richard of Ilchester's reforms, and was never concerned with non-financial business except incidentally. In other words, the later court of exchequer in Normandy was a creation of the French kings; see p. 250. That, whatever name the court had in the twelfth century, it existed as described above is clear from the charters edited by Mr. Haskins in his article upon the administration of Normandy under Henry I (English Historical Review, xxiv, 218). This article, unknown to M. Valin, deprives his attack upon the Merton charter of its force, since M. Valin chiefly relies upon negative evidence.

4. English Historical Review, xxiv, 217. Even at the end of the century the English chancery issued writs very sparingly in the king's absence.

writs and was a court of record. Its members, the barons of the exchequer, formed a limited body of professional men, who heard appeals, registered settlements, and before the end of our period had begun to affect the customs of Normandy by their decisions, which became a kind of case-law, just as the duke affected them by the addition of his statutes. By this time there was no doubt of the competence of the seneschal and justices to decide matters of all kinds, even the procedure of baronial courts.2 Moreover, in Normandy, as later in England, the formation of a fixed tribunal at Caen was followed by the development of new procedure of which the duke had a complete monopoly. Ducal control of civil and criminal jurisdiction grew rapidly as the jury of presentment and the well-known recognitions of novel disseisin, mort d'ancestor, etc., were created as instruments of inquiry. Henry I as the records of Bayeux show, had ordered sworn inquests to be made in certain cases,3 and had gone a step further than his father the Conqueror; but the close connection between the central and local courts, by means of the possessory assizes, with the consequent interference in the feudal courts, seems to have been due to the policy of the Angevin Duke Geoffrey, the father of Henry II.

1. The custumal, c. lvii, lxi (Tardif, I, i, p. 52), gives cases of pleadings or decisions which modified existing law. The seneschal and the justices on assize of course shared in this process. The judgments of the exchequer in the reign of Philip Augustus show it more clearly.

2. e.g. in an assize at Domfront before Arnulf of Lisieux and Robert of Neubourg it was decided that all tenants-in-chief in Normandy were able if they wished to summon all trials by battle to their mansio capitalis (Robert of Torigni, ed. Delisle, ii, 241). All pleas involving the duel were summoned from Gaillon to Evreux, accordingly (Cart. Norm., no. 120, p. 22). Below, p. 293.

3. For the reign of Henry I, see Haskins, The Early Norman Jury, in the American Historical Review, viii, pp. 613-640.

4. For this and what follows, see, besides the article referred to in the last note, Valin, pp. 194–219; English Historical Review, xxii, 15–21. M. Delisle, Introduction to the Recueil des Actes de Henri II, pp. 137-8,

At any rate, most of the great reforms associated with the name of Henry II can be traced in Normandy before they appear in England. A system of itinerary courts was necessary to put these reforms into practice; and before the end of the century the pleas of the sword, swollen, as a result of Henry's rigorous inquisitions, in importance as well as in number, were also tried by the itinerant justices. As the judges moved from bailiwick to bailiwick, all feudal courts ceased to sit, and the knights and barons of the district gathered at the place of session.1 Quite apart from the juries of recognition, juries of knights, whose number varied with the size of the bailiwick, were appointed to assess the chattels of those who had fallen in the mercy of the duke. 2 Only special grant could exempt the local gentry from attendance; no privilege could

1. Statuta et consuetudines, c. xliv (Tardif, I, i, p. 37).

2. Ibid, c. lvi (Tardif, I, i, 45). A charter of John for William of Briouze (Rot. Norm., p. 20) shows that the bailiff, like the English sheriff, had right of entrance into those fiefs-some of which were very importantwhich did not possess the pleas of the crown (cf. Maitland, Select Pleas in Manorial Courts, vol. i, p. xxv). The charter also proves that pleas of the crown were tried by the itinerant justices in John's reign. I have quoted it in English Historical Review, xxii, 19. I think it very probable that Henry II experimented in Normandy as in England, and that for some time the assizes dealt with the statutory possessory actions only, while the bailiffs continued to hold pleas of the sword. According to a writ quoted by M. Valin (p. 227, note) sent from Henry II to the viscount of the Oximin (not, I suggest, of Exmes) the land of Robert Marmion is to remain quit of the pleas which belong to the viscount, "salvis placitis meis de gladio que spectant ad baillivos meos de Falesia." The pleas of the viscount would at this time (after 1173) be trivial. See above p. 84.

agrees with Mr. Haskins in attributing several important charters which illustrate the history of the assises of recognition to Geoffrey. The custumal explains the possessory assizes admirably. Bigelow, History of Procedure in England, pp. 4, 5, notes some differences in Norman procedure. (Tardif, p. 44).

On the criminal jury of presentment, see c. lv