« PreviousContinue »
idea of wreckage with the superior doctrines of the code. 1 The dukes had restrained the baronage by taking away their castles; they sapped their judicial independence by taking away their business. Many men, it is true, had castles, and many held pleas of the sword, but both were held by license, and availed little; for there were some pleas, and these the most seductive, which no man was allowed to have, just as no man was long allowed to hold so great a fortress as Alençon.
1. Giraldus Cambrensis Opera, ed. Brewer (Rolls Series), viii, 118.
NOTES TO CHAPTER III.
NOTE A. THE TRUCE OF GOD IN NORMANDY, AND THE
RIGHT OF PRIVATE WARFARE.
The insistence upon the religious device for keeping the peace, known as the Truce of God, in the synods of Caen (1042), Lisieux (1064), Lillebonne (1080) and Rouen (1096) 2 has been regarded as positive proof that private war was allowed in Normandy, while the absence of such regulations in England is assumed to show that the reverse was the case in that country. The further deduction has
1. The canons of the council of Lisieux are contained in a Norman MS. 'of the twelfth century, preserved in Trinity College, Cambridge (Western MSS. in the Library of Trinity College, Cambridge, ed. M. R. James, vol. ii (1901), no. 982), and were edited by Delisle in 1901 in the Journal des Savants, 1901, p. 517. The tenth canon insists upon the truce of God.
2. Delisle, Etudes sur la condition de la classe agricole, pp. 115, 116; Pollock and Maitland, History of English Law, i, 75.
3. History of English Law, i, 75; Valin, Le Duc de Normandie et sa Cour, pp. 191–193. See also Perrot, Les cas royaux (1910), p. 308.
Mém. de la Soc. des Antiq., xxii, 575, 616, seq. The use of the voluntary jury in feudal courts would work in the same direction. All duels had to be recorded in the duke's court (Statuta et consuetudines, c. xxix, Tardif, p. 26).
been made that the duke of Normandy was originally, so far as judicial influence was concerned, invested with no special powers. If this were so, his position would recall that of the counts of Anjou in the eleventh century.1
The first part of this argument seems to be true, but only true in the sense that it helps us to approach the facts with least fear of error. It is true that private war was more common in Normandy than in England, and that while the tendency of English law was to insist that all military service was royal service, the tendency in Norman law was to define the rights to service generally, for lord as well as for duke.2 As we have seen, the failure to fight for the duke could only be punished as an act of disloyalty when the subvassal who failed had entered into a definite agreement to fight for the duke as well as for his lord. 3 But this distinction between England and Normandy is vague and general; it deals in rough tendencies, and when it is tested by facts, it disappears as a practical truth, and retains merely a theoretic value. As a negation of the ducal rights of justice, it is valueless.
1. First, let us take the Truce of God itself. To begin with, it is not quite true to say that it did not extend to England. Besides the more or less academic influence which it exerted upon late Anglo-Saxon law and upon Anglo-Norman pleading-an influence upon which no stress can be laid —there are more important bits of evidence. For example, the customs of Chester invested special days and periods with the sanctity of a twofold penalty for wounding and homicide. Again, in 1142, during the civil war in England, the council of London
1. Above p. 26.
especially protected the plough, just as the synod of Rouen had done in 1096.1
2. Secondly, it must be observed that the Truce of God was a direct attempt by the church to co-operate with the duke in maintaining the peace protected by the duke, and that, on his side, the duke definitely regarded the expedient as capable of ducal extension. When a synod of the church protected the plough, they added ecclesiastical sanction to the special peace of the duke, which protected the plough also.2 The council of Lillebonne, at which the officials of State and Church combined, was so far from regarding the Truce of God as a stop-gap for a hole in ducal rights that the officials of the duke were instructed to enforce the will of the bishop if a lord refused to
“Si quis autem episcopo suo inobediens fuerit, domino, in cuius terra habitat, episcopus hoc demonstret et ille eum subdat episcopali justicie. Quod si et dominus facere contempserit, regis vicecomes per episcopum requisitus, omni remota excusacione, faciat.”3 Similarly, in 1135 Henry I in a full council of clergy and barons, made the infraction of 'treugae et pax ecclesiae' a plea of the crown, to be met by the “duellum” in the ducal court (“si occisorem illum aliquis duello appellare volnerit, duellum illud in curia mea tenebitur”). 4 This is all the more striking, because the “duellum” could be waged in any court in the ordinary course of law. The Truce of God, then, may be described as an additional sanction for the preservation of the peace; it adds practical weight to the
1. Delisle, op. cit., p. 116, note.
3. Statutes of Lillebonne in Teulet, Layettes du T'rèsor des Chartes, i, 25.
4. The statute is in the Custumal, Statuta et consuetudines, c. lxxi (Tardif, I, i, pp. 65–67). If no petitioner appeared the church dealt with the offender, but the duke apparently had him also in mercy if he were convicted (p. 67). Stephen confirmed this statute. See his charters, Nos. 5 and 11, in Delisle's Introduction, pp. 117, 119.
authority of the duke, but it can tell us nothing of the current theory about ducal authority. It dealt with facts of private warfare, not with the law.
3. In truth, private warfare was put down both in England and Normandy by regulation and restriction rather than by direct attacks upon its legality. This is clear from Domesday Book, so far as England is concerned. On the borders of South Wales, the Welshmen were allowed to wage war according to Welsh law, and the king took a third of the spoil. 1 Tbe varying tariff for homicide and other crimes represented the varieties of restraint imposed by the State. Some offences were forbidden, or in more correct language, reserved for the justice of the king. In Normandy the list of offences so reserved was very similar to the list which may be found in the laws and writs of Canute. The emphasis varied : thus, arson was, so far as the experience of Orderic Vitalis went, a crime less common in England than in Normandy, and more heavily punished; 2 but yet arson was a ducal plea in Normandy before 1066.3 In both countries the State, as represented by the duke or king, had insisted that some matters were matters for public justice. Now, over against this restraint, was the duty of feudal service. Feudal
1. See the facts brought together in the History of English Law, ii, 457. Compare the Conqueror's limitation of the blood feud (English Historical Review, xxiii, 503).
2. The passage quoted in History of English Law (i, 303) from Orderic Vitalis seems to me to refer to arson and not to war as a crime. Ivo of Grandmesnil “ guerram in Anglia coeperat et vicinorum rura suorum incendio combusserat, quod in illa regione crimen est inusiatum nec sine gravi ultione fit expiatum ” (Ord. Vit., iv, 167). For arson as a plea of the crown, punishable by burning, see History of English Law, ii, 492. Although apparently a venial offence in some districts (ii, 457) at the date of Domesday Book, it may well have been opposed to English sentiment. The passage shows how, early in the twelfth century, private war could be checked by means of the royal pleas.
3. The custom of St. Pierre of Préaux at Vascoeuil (Valin, p. 258, no. 2, and English Historical Review, xxiii, 504).
service involved war; this might well involve the death or loss of persons in the special peace of the duke or king, it might involve crime like arson; certainly it would inconvenience the peasant at the plough. In modern times such crimes would be increased by the crime of conspiracy; but in the eleventh and twelfth centuries, the duty of following one's lord could hardly be regarded as capable of leading to additional crime. Consequently, in England private warfare was not condemned. In theory the obligations of homage were recognised even by the great lawyers of the thirteenth century. 1 The king could of course forbid special outbreaks of private war, but the practice was really stayed by the extension of the meaning of 'felony,' and the extension of the feudal right of the king over sub-tenants. In Normandy, the position was not quite so simple. For one thing, the duke's peace was not so widespread,—for another, his feudal rights did not extend so widely. But private war was broken on the same obstacles as met it in Englandon the obstacles presented by the existence of rights of public justice in the duke. In the Conqueror's time strict legal limitations were imposed upon it, and gradually more direct opposition was raised against it than was necessary in England. This opposition took the shape of the Truce of God, and later apparently of direct enactment, since in the custumal we read, ‘Nullus hominum audeat versus alium guerram facere.'3 The point to notice, so
1. History of English Law, i, 301-305. 2. The limitations of private war in the Norman consuetudines et justicie of 1091 (English Historical Review, xxiii, 507–8, $$ 6, 8, 14) show both the power of the duke and the close connection between the restraint and the pleas of the sword.
3. Statuta et consuetudines, c. xxxi (Tardif, I, i, p. 27). I cannot follow the paradox in the History of English Law (i, 303, note) that this is a confession of weakness. Whatever the difference between England and Normandy before the anarchy of Stephen's reign, there is no evidence that Henry II met the nuisance of private war very differently in either country. The judicial reforms were the same in both lands.