And, indeed, there is, properly, speaking, no distinct feudal law in England. There, "feudal law is not a No distinct feudal law 1 special law applicable only to one fairly definite set of relationships, or applicable only to one class or estate of men; it is just the common law of England." The English nobility is not therefore separated from the non-noble class, as in France, by a whole body of customs which constitutes for it a special private law. It is public law which gives it a place apart and a superiority very different, for the rest, from those which the French baronage claimed. The English baronage was founded by the the Norman monarchy, and owed its riches and privileges to it. The barones majores are those whom the king has endowed with rich estates 2nd whom he summons to 1. Pollock and Maitland, English Law, i, pp. 235-236. 2. It is well-known that these estates, instead of forming compact principalities like those of the French dukes and counts, were generally scattered over several counties. Mr. Round has proved that this disposition, a singularly favourable one to the monarchy and attributed by historians to the political genius of William the Conqueror, frequently originated in the uncompactness of the properties of the Anglo-Saxon thegns. "It is often urged," he says, that William deliberately scattered a fief over several counties in order to weaken its holder's power. But this scattering might be only the result of granting the estate of a given thegn. Thus, in Hampshire, Alured of Marlborough had, in both his manors, succeeded a certain Carle, who was also his ' antecessor' in Surrey and Somerset, and in the bulk of his Wiltshire lands. Arnulf de Hesdin had for his predecessor, in his two Hampshire manors, an Edric, who was clearly also his 'predecessor' in the three he held in Somerset, and in some of his lands in Gloucestershire, Wilts. and Dorset. In like manner Nigel the physician held lands in Wiltshire, Herefordshire and Shropshire, as well as in Hampshire, because in all four counties he had succeeded Spirtes, a rich and favoured English priest. On the other hand, a Domesday tenant-in-chief may have received a congeries of manors lying in a single shire. Of this there is a very striking instance in the fief of Hugh de Port. Except for two manors in Cambridgeshire, and one apiece in Bucks and Dorset, the whole fief lay in Hampshire," where he held fifty-six manors from the crown, and thirteen from the bishop of Bayeux. (Victoria History of Hampshire, i, 421-422; cf. Hertfordshire, i, 1902, p. 277; cf. also the case quoted by F. M. Stenton, Vict. Hist. of Derbyshire, i, 1905, p. 305). Mr. Round admits also that, side by side with the cases in which the companions of William received the entire estates of rich Englishmen, we have examples of Anglo-Saxon estates divided between several Normans, and estates formed for Normans from numerous small English estates. (Vict. Hist. of Essex, i, 353.) the Commune Concilium by individual The barons letters; some of them are honoured by him with the title of earl and bear the sword of the earldom. The English aristocracy is to be a political aristocracy, a high nobility formed of privileged individuals, transmitting their power to the eldest son.1 In the same way the knights, who are to play so important a rôle in constitutional history, do not enjoy a very peculiar personal status; but, as The knights Stubbs shows, the carrying into effect of the judicial system inaugurated by Henry II. depends on their loyal co-operation; they are a class of notables, charged with judicial functions which can only be devolved upon men of trust. Apart from this distinctive feature, no barrier separates the knights from the rest of the freemen; military service is not strictly confined to the tenure by knight service, and the knight's fee might even be held by a freeman who was not a knight. liber homo To sum up, in England there is no legal personal distinction except between the free and the un-free; but liber does not mean noble, although this Meaning of has been lately maintained.2 In its narrower meaning, at least in certain passages, the liber homo of the English realm, far from designating the noble in opposition to the non-noble person, designates the non-noble freeman as opposed to the noble. In its wider significance, liber homo means: one who is not a serf; it is in this sense that the Great Charter is granted to the liberi homines of the realm. It 1. On all this comments will be found, which if not original, are at least formulated with much precision and vigour, in E. Boutmy, Développement de la Constitution et de la Société politique en Angleterre, pp. 13 sqq., and English Translation by I. M. Eaden (The English Constitution), 1891, pp. 3 sqq. 2. According to M. Guilhiermoz, Origines de la Noblesse, p. 364, in England, liberi homines signifies gentilshommes, and liberi tenentes signifies possessors of noble fiefs or holdings. This theory is no truer of England than it is of France. 3. See the case of 1222 quoted by W. E. Rhodes, Engl. Histor. Review, xviii, 1903, p. 770: the rate of the contribution paid for the deliverance of the Holy Land is 1s. for the knight and 1d. only for the liber homo. is as liber homo, not as noble, that the noble has personal rights.1 But social relations in England rested, above all, on another principle—that of tenure, which was applied to almost the whole of the population, from Tenure the king, from whom every tenure depends mediately or immediately, down to the humblest serf cultivating the land of his lord.2 There was not an inch of English soil which was not subjected to this single formula: 'Z. tenet terram illam de . . . . domino rege,' Z. being either tenens in capite or separated from the king by more or less numerous intermediaries. This formula applies to all those who have a parcel of land, even to the farmer, even to the serf cotter, and it equally applies to the religious communities who hold land from a donor without owing him anything in return save prayers. Vagabonds and proletarians excepted, who must, I imagine, have existed always and everywhere in country and town,3 all the English of the Middle Ages were tenants, and tenure, in the eyes of the lawyers, was much more important than personal status. The distinction even between free and non-free in this country was practically a distinction between tenures much more than a distinction between persons.5 1. See the exposition and application of this fact in Pollock and Maitland, i, pp. 408 sqq. 2. See above, p. 23. 3. On the floating population of the country, the "undersette" and the "levingmen" see Vinogradoff, Villainage, pp. 213, 214. 4. Let us add that one and the same person might have tenements of different categories. Pollock and Maitland, English Law, i, p. 296, quote the instance of Robert d'Aguilon, who held lands from different lords, by military service, in sergeanty, in socage, etc. 5. See Pollock and Maitland, i, p. 232 sqq., 356 sqq., 407. The customs which we call feudal, such as rights of relief, of wardship, of marriage, etc., attached themselves not to the person but to the tenure by knight service. In practice, of course, they were subjects of the keenest interest for members of the nobility, and it is for this reason, that, in the Great Charter, the baronage took particular precautions to prevent the crown from abusing them. Pollock and Maitland, pp. 307 sqq. study these customs and try to determine in what measure they were peculiar to the tenure by knight service. Sometimes tenure in socage was subject to the rights of wardship and of marriage. Let us leave aside servile tenures, of which we have spoken in studying the problem of the manor. The free tenures at the end of the historical Free tenures Tenure in frankalmoin period dealt with in Stubbs' first volume may be grouped into the following principal types :— 1. Tenure in frankalmoin, in liberam elemosinam, in free alms. It is theoretically the land given to the Church, without any temporal service being demanded in return; it is agreed or understood that the community will pray for the donor. In practice, tenure in frankalmoin admits of certain temporal services, and its clearest characteristic, at the end of the twelfth century, is that judicially it is subject only to the ecclesiastical forum. Tenure by 2 Tenure by knight service, per servitium militare. The holder of a knight's fee owes in theory military service for forty days. In the twelfth knight service century the king often demanded, instead of personal service, a tax called scutage.1 The usual rate was two marks on the knight's fee, and it has been pointed out that that sum was equal to the 1. Stubbs discusses scutage in several passages; see vol. i, pp. 491-492, 494, 624-625. He rightly remarks that this term did not always denote a tax to replace military service. But, both in regard to the origin of scutage and in regard to the obligations imposed, when it was levied, on those who held land by knight service, he should have taken account of recent work, and not have contented himself with referring in a single line to Mr. Round's article which is in absolute contradiction with some of the conclusions to which Stubbs continued to adhere. Mr. Round took up the question of scutage again, in the course of a bitter controversy with Mr. Hubert Hall, editor of the Red Book of the Exchequer (See the bibliography in Gross, No. 1917). An excellent piece of work by an American scholar, J. F. Baldwin, should also be read: The scutage and knight service in England, Chicago, 1897. Brieffy, there is no ground for considering scutage as an innovation of the reign of Henry II; the tax in substitution for military service and even the word scutagium already existed under Henry I. On the other hand, scutage only dispensed from military service if the king thought fit: his subjects had not the right to choose (See Pollock and Maitland, English Law, i, pp. 267 sqq.) Scutage, from the beginning of the 13th century, came to be a tax like any other; no exemption was granted in exchange. Mr. Baldwin shows, moreover, that its financial importance has been exaggerated. The question of scutage will be definitely elucidated when all the Pipe Rolls anterior to the middle of the 13th century, the period at which scutage fell into desuetude, have been published and studied. The king's pay of a knight hired for forty days. servants reckoned, in the thirteenth century, that William the Conqueror had created 32,000 knights' fees. It has been calculated that in reality the king of England could not count on more than 5,000 knights.1 Legally, military service was a regale servitum. The right of private war was not recognised. In practice, the lords reckoned on the knights whom they had enfeoffed to sustain their personal quarrels and not merely to provide the service demanded by the king from each of his tenants-in-chief; there were some even who maintained more knights than their obligations towards the king required. 3.Tenure in serjeanty. Tenure in serjeanty The servientes, serjeants (officers of every kind from the seneschal or the constable to the cook or messenger), received land from the king or the lord whom they served on a tenure called serjanteria. The obligations of this tenure were sometimes agricultural, sometimes military. Holders of military serjeanties only differed from knights by their lighter equipment. Tenure in socage 4.Tenure in free socage, in socagio. From the end of the twelfth century it can be said that all free tenure which is neither frankalmoin nor knight service nor serjeanty, is tenure in socage. Land can be held in socage by the most diverse persons; by a younger son of a family, who has received it from his father, by a great personage who holds it of the king on condition of a rent or of agricultural services, or, finally, a very ordinary case, by free peasants. These last owe the lord a rent or services, and their economic condition frequently approaches that of the un-free villeins; but these freeholders are bound directly to the king by an oath of allegiance, often take even an actual oath of homage to their lord and form part of the county court and the juries. 1. Round, Feudal England, pp. 264-265, 292. |